Here you can read my master thesis on the Returns Directive.
I am proud to say that after writing this thesis the highest administrative court in the Netherlands (Raad van State) confirmed my most important conclusion (LJN: BP9284, Raad van State, 201100555/1/V3) that detention of aliens on individual public order grounds cannot be based on the Returns Directive.
The Returns Directive and the Detention of Illegal Aliens in the Netherlands.
Master EU law Thesis by J.W. van der Borch, 0017671, 18th April 2011.
1 Introduction.
2.1 The Returns Directive.
2.2 The Scope.
2.3 Termination of Illegal Stay.
2.3.1 Return Decisions.
2.3.2 Voluntary Departure.
2.3.3 Removal.
2.4 Re-entry bans.
2.5 Procedural Safeguards.
2.6 Detention.
3.1 The Kadzoev Case.
3.2 The Facts.
3.3 The Questions Raised before the Court of Justice.
3.4 The Lacuna in EU migration Law: Regularisation.
4.1 The Impact of the Returns Directive on Article 59, VW 2000.
4.2 Article 59, VW 2000.
4.3 Procedural safeguards.
4.4 Duration of Detention and its Grounds.
4.4.1 Duration of Detention based on Article 59.
4.4.2 Grounds for Detention based on Article 59.
4.5 Detention as Last Resort.
4.4 Case Law Relating to Article 59 and the Returns Directive.
4.5 The Proposed Amendment of Article 59.
5 Conclusion.
6 Appendix.
7 References.
1 Introduction.
Since the borders have disappeared in the Schengen area exciting new European Union (EU) law has been developed to deal with this reality. For instance a European immigration policy became necessary because persons can freely move from one country to another without being checked at borders. These new areas of EU law are exciting because they testify that European collaboration has entered a new phase in its evolution. Competences belonging to the core of state sovereignty, such as immigration related rules, are slowly shifted from the exclusive domain of the Member States to the shared domain of the Union. Europe is moving towards a new political reality going beyond the traditional conception of the nation state and moving towards a new political system that, in my opinion, will be the example for future global governance.
In the last two decades an impressive body of EU immigration law has been developed. This thesis deals with one of the most recent developments in EU immigration law: the Returns Directive.[1] This legal instrument provides for ‘common standards and procedures in Member States for returning illegally staying third-country nationals.’[2] In this thesis I will address the influence the Returns Directive on the detention of aliens in the Netherlands.
More specifically I will assess the impact of the Returns Directive on detention of aliens based on Article 59, Vreemdelingenwet (VW) 2000.[3] Firstly, I will discuss the Returns Directive. Secondly, I will analyze how the Kadzoev judgement[4] interprets the use of detention in the Returns Directive. Thirdly, I will discuss the detention regime of aliens based on Article 59, VW 2000, and assess what the effects of the Returns Directive are on such detention; I will clarify these effects by discussing Dutch case law and to conclude I will analyze whether the proposed amendment of Article 59, VW 2000, correctly transposes the Returns Directive in Dutch law.
2.1 The Returns Directive.
The legal basis of the Returns Directive can be found in the provisions regarding the Area of Freedom, Security, and Justice (AFSJ). This policy area is the successor of Justice and Home Affairs (the former third pillar) and was introduced by ratification of the Treaty of Amsterdam in 1999.[5] Following the creation of the AFSJ the European Council adopted the Tampere Conclusions stating that a common migration and asylum policy should be developed within the AFSJ.[6] After the events of 11 September 2001 the focus within the common migration and asylum policy was shifted towards combating illegal immigration.[7] The Returns Directive should be placed within this more restrictive line of European migration policy.[8]
In the 2004 Hague Programme the Commission was called by the European Council, inter alia, to submit a proposal ‘for the establishment of an effective removal and repatriation policy based on common standards for persons to be returned in a humane manner and with full respect for their human rights and dignity.’[9] Following the co-decision procedure, the Commission sent the proposal for the Returns Directive[10] to the Council and European Parliament in September 2005.
The negotiations within the Council caused significant delays[11] and it was not until the second half of June 2008 that an informal deal was made between Council and Parliament.[12] The difference between the initial proposal and the actual Directive is striking. All provisions and amendments falling outside the scope of the achieved compromise and aiming to make the legislation more favourable towards immigrants, such as the obligation to provide for free legal advice in all circumstances, were left out.[13]
Notwithstanding, the European Parliament adopted the watered down Returns Directive at its first reading on the 18th of June 2008. The European Parliament didn’t request a second reading for the following reasons. First, the new French Presidency of the Council was expected to be tougher in negotiations. Secondly, an absolute majority within the European Parliament would be needed in a second reading, and this majority would be hard to get. Thirdly, national governments pressured their national representatives to back the compromise and finally, many Members of Parliament believed it was better to achieve some common rules instead of no legislation at all.[14]
The European Parliament has received fierce criticism[15] for its acceptance of a ‘deficient’ piece of legislation.[16] For instance, UNHCR has claimed the Returns Directive ‘does not incorporate all the safeguards necessary to ensure that returns take place in safety and dignity.’[17]
Hereunder, I will discuss the main themes of the Returns Directive.
2.2 The Scope.
The scope of the Returns Directive can be found in Article 2(1) where it is stated that the Returns Directive applies to third-country nationals staying illegally on the territory of a Member State.
Three groups of aliens are excluded from this scope in. Member States may exclude from the scope of the Directive third-country nationals who are refused entry at the border (Article 2(2)a), aliens who have crossed the border illegally from the scope of the Directive (Article 2(2)a) and aliens who are subject to return due to a criminal law sanction from the scope of the Directive (Article 2(2)b). Consequently, these aliens can be removed without relying on the legal guarantees as set out in the Directive.
The wording defining the second group is vague because it is not made clear under what circumstances aliens can be excluded from the Directive after crossing the border illegally. From the negotiating positions of some Member States it seems that Article 2(2)a can be interpreted to cover those who have crossed the border illegally and are apprehended later in time.[18] This interpretation will cause large groups of immigrants to be excluded from the scope of the Directive. Because in general asylum seekers cannot cross European borders legally.[19] It follows that all aliens who have crossed the border illegally can be excluded from the scope of the Directive and be removed without the legal safeguards as set out therein.
However, aliens who are excluded from the scope of the Directive are afforded some protection. According to Article 4 they have to be treated equal to aliens falling under the scope of the Directive with regard to the use of coercive measures, postponement of removal due to physical or mental capacity, emergency health care and detention conditions. Finally, the principle of non-refoulement always has to be respected for aliens that are excluded from the scope of the Directive. Non-refoulement is enshrined in Article 33 of the 1951 Refugee Convention and forbids the forced return of refugees if a well-founded fear of being persecuted exists for reasons of race, religion, nationality, membership of a particular social group or political opinion. Furthermore, non-refoulement is also an obligation under Article 3 ECHR for aliens who enjoy subsidiary protection. This means that it is forbidden to return aliens if they can proove they will suffer treatment in violation of Article 3 ECHR in their country of origin.
2.3 Termination of Illegal Stay.
The second chapter of the Directive, entitled termination of illegal stay, deals with the main provisions relating to the removal process. In short illegal aliens will first receive a return decision. This decision must provide for a period in which aliens can return voluntarily before they can be removed from the EU by force.
2.3.1 Return Decisions.
Article 6 deals with return decisions. A return decision is defined in Article 3(4) as an administrative or judicial decision stating or declaring the stay of a third country national to be illegal and imposing the obligation to return.
In principle return decisions are mandatory and procedurally necessary to remove aliens under the Directive. However, there are four exceptions to this rule. According to Article 6(2) a return decision shall not be given if an alien holds a valid residence permit in another Member State. According to Article 6(3) a return decision is also not obliged if an alien can be taken over by another state under bilateral or other arrangements. Article 6(5) states that in case an alien has an application for a residence permit or renewal pending a return decision shall not be given. Finally, Member States may decide to refrain from a return decision for compassionate or humanitarian reasons (Article 6(4)).
It should be noted that in the initial proposal this last provision was mandatory and Member States where obliged not to issue return decisions in case certain fundamental rights obligations would be breached. In the proposal mandatory exceptions existed for the right to education for minors, the right to family unity and the right to family reunification. These mandatory exceptions have been deleted from the Directive.[20]
2.3.2 Voluntary Departure.
Voluntary departure is defined in Article 3(6) as compliance with the obligation to return within the time limit as set out in a return decision.
Agreement in the Council about voluntary departure was difficult to attain due to the absence of a common European practice, the reluctance of Member States to limit their power to enforce return and the increased risk of absconding (running away) during a period of voluntary return.[21] Nevertheless, Member States are obliged to offer a period of voluntary departure and to extend this where necessary. Article 7(1) sets the period granted for voluntary departure to a minimum of seven days and a maximum of thirty days. This period can be extended depending on individual circumstances such as the existence of family life (Article 7(2)).
Article 7(3) states that during the period of voluntary departure Member States can, to avoid the risk of absconding, require aliens to report regularly, to deposit a financial guarantee or to submit travel documents such as their passport.
Finally, there are exceptions to the duty to give aliens a period for voluntary departure. According to Article 7(4) such a period is not obliged in the following circumstances.
· If there is an existing risk of absconding;
· If an application was manifestly fraudulent;
· If a person represents a threat to public order.
The right to a period of voluntary departure can be seriously undermined by these exceptions. Most importantly because Article 3(7) defines “the risk of absconding” as the existence of individual circumstances, based on objective criteria as defined by law, which give reason to believe that a third country national will abscond. This definition is rather minimalistic and gives Member States considerable room to define objective criteria by law in order to withhold an alien a period of voluntary departure, at least as long as the European Court of Justice (ECJ) has not yet interpreted the Article.[22]
2.3.3 Removal.
Removal is defined in Article 3(5) as the enforcement of the obligation to return by physical transportation. This obligation to return is created by a return decision. When an alien does not leave voluntarily Article 8(2) obliges coercive removal. According to Article 8(1) Member States are also obliged to enforce a return decision by removal in case no period of voluntary return is granted. In short, aliens who do not comply with the obligation to return will be removed by force as a result of the Directive. Article 8(4) states that coercive measures - which can help enable the enforcement of the obligation to return, such as detention - can only be used as a means of last resort and in so far as they are proportionate. Furthermore, all coercive measures need to be in accordance with existing national legislation and in respect of fundamental rights.
According to Article 9(1), Member states are obliged to postpone removal if return would violate the principle of non-refoulement and for as long as a return decision is under judicial review. Secondly, Article 9(2) states that Member States can decide to postpone removal based on individual circumstances such as physical and mental health, a failure to identify an alien or a lack of transport capacity. During such postponement of removal aliens can be required to report regularly, to deposit a financial guarantee or to submit their passport according to Article 9(3).
Article 9 doesn’t mention a maximum duration of postponement of removal. In practice this can result in situations in which the removal of aliens can be postponed for an indefinite period.[23] Such indefinite postponed removal is not in the interest of aliens, because during this period they remain illegal and are in no way regularized under the Directive. It follows, inter alia, that they cannot work legally. In this context, it is also important to note that the obligation, to ensure basic standards of subsistence to aliens whose removal is postponed, was watered down considerably because the provision, stating that national legislation should define the basic conditions of subsistence of aliens who cannot be removed, was moved from the actual text of the Directive to recital 12 in the preamble.[24] All in all, (indefinite) postponement of removal can lead to situations in which aliens to survive are pulled towards work in the informal economy or criminal activities.
2.4 Re-entry bans.
Re-entry bans are defined in Article 3(6) as an administrative or judicial decision prohibiting entry into and stay on the territory of the Member States for a specified period. In recital 14 of the preamble it is stated that re-entry bans thereby give a European dimension to return decisions. Article 11 deals with re-entry bans and mentions the circumstances under which a re-entry ban will be issued. In Article 11(1) it is stated re-entry bans are obligatory if no period for voluntary return is granted to an alien or in case aliens are removed by force. In all other cases Member States are allowed to accompany a return decision with a re-entry ban.
The length of a re-entry ban is set to a maximum of five years (Article 11(2)). However, in case an alien represents a threat to public order and security this period may be extended. It is worrying that Article 11 doesn’t specify how much the maximum of five years can be extended because the maximum period could, in principle, be extended by an indefinite period of time.
The exceptions to the rule that re-entry bans are obligatory can be found in Article 11(3). This Article provides for mandatory exceptions for victims of human trafficking and for aliens who can demonstrate they have autonomously complied with a return decision. Such aliens shall never receive a re-entry ban.
Article 11(3) also provides for non-mandatory exceptions. Member States may refrain from issuing a re-entry ban based on individual humanitarian reasons or for certain categories of cases for other reasons. These non-mandatory exceptions are formulated in such a vague way, that in fact Member States can issue re-entry bans at their own discretion based on Article 11(3).[25] Therefore the Directive will not have the desired harmonizing effect on this point. Consequently, the possibility of Member States to use such non-mandatory exceptions can lead to a divergent use of re-entry bans within the EU. This is a serious deficiency and it is to be regretted that the Directive does not give a clear provision regarding the use of non-mandatory exceptions in relation to the duty to issue re-entry ban. Moreover, a re-entry ban issued by one Member State requires all other Member States to recognize and to enforce this decision. It follows, that re-entry bans imply the principal of mutual recognition of removal decisions throughout the EU. Such a far-reaching effect should not have been formulated in such a vague way, opening possibilities of divergent use of re-entry bans in the EU.[26]
2.5 Procedural Safeguards.
The procedural safeguards can be found in Chapter three of the Returns Directive. Article 12(1) provides for the obligation that return decisions are in writing and give reasons in fact and law. According to Article 12(2) Member States are obliged to offer a translation of a return decision and give the persons concerned information on the available legal remedies in an understandable language.
Article 12(3) holds an important exception to the procedural safeguards. In case aliens have illegally entered a Member State and refrained from applying for a residence permit, a standard form, accompanied with general information and in the five most frequently used languages, is sufficient to issue a return decision. Such denial of procedural safeguards to certain groups is undermining to the legitimacy of the Directive as a whole because the equal treatment of aliens in the return process is at stake. Furthermore, the use of standard forms to issue return decisions is incompatible with case law of the European Court of Human Rights. For instance in the case Conka v Belgium it was ruled that a removal order without reference to individual circumstances is unlawful because such orders can be used for the collective removal of groups, which is prohibited according to Article 4 of Protocol 4 of the ECHR.[27]
In Article 13(1) and 13 (2) it is stated that all aliens have the right to an effective remedy to appeal decisions regarding return, removal and re-entry bans. Furthermore, according to Article 13(3) and 13(4) legal advice should be available and free of charge in accordance with national legislation. However, there are three exceptions to the rule that in principle free legal advice to aliens has to be provided for,[28] These exceptions are given in Article 15(3) of the Asylum Procedures Directive. Firstly, free legal advice can be denied for judicial review of administrative decisions. According to Article 3(4), 3(6) and 15(2), Returns Directive, Member States can choose to issue return decisions, re-entry bans or detention orders by way of administrative rather than judicial decision. This implies that according to the Asylum Procedures Directive free legal advice is not obliged when return decisions, re-entry bans or detention orders are issued under the Returns Directive as administrative decisions according to Article 3(4), 3(6) and 15(2). In other words, when a Member State decides that return decisions, re-entry bans or detention orders can be made by administrative decision instead of judicial decision, this means free legal advice is not obliged. Consequently, it is possible that aliens will be detained and returned without any judicial review because the free legal advice necessary to appeal is not provided for. Secondly, free legal advice can be denied where appeal or review has no good chance to succeed. Thirdly, free legal advice can be restricted to monetary and temporal limits. Therefore, Article 13 contains a very limited obligation to provide for free legal advice. This has been one of the most contested parts of the Directive during the period of negotiations within the Council due to the absence of a common European practice on this subject.[29]
2.6 Detention.
For this thesis the provisions regarding detention of aliens are of particular interest. In the original draft the use of detention was planned to be mandatory and automatic. During negotiations the positions of the European Parliament and the Council seemed to be irreconcilable on this point.[30] However, under parliamentary pressure mandatory detention was replaced by optional detention and unlimited detention was replaced by limited detention.[31] From a lawyers point of view this change was inevitable because an obligation to automatically detain illegal aliens would not withstand a legal challenge based on Article 5 ECHR.[32] In other words, an alien cannot without any further justification be detained just because he or she doesn’t have a residence permit.[33]
However, Article 5(1)f ECHR states that a person can be detained ‘against whom action is being taken with a view to deportation or extradition.’[34] This provision has been put to the test in numerous cases before the European Court of Human Rights.[35] For instance in cases such as Chahal v. the United Kingdom and Quinn v. France it was ruled that detention in order to remove aliens is acceptable as long as action with a view to removal is in progress and executed with due diligence. These requirements of ECHR case law are clearly reflected in the wording of Article 15(1), which states that detention measures can only be maintained as long as removal arrangements are actually and diligently executed. According to Article 15(1) and 15(4) Member States are obliged to release an alien immediately when a reasonable prospect of successful removal no longer exists or diligent preparations thereto have ceased.
Moreover, according to Article 15(1) detention can only be used as a means of last resort if no other, less coercive measure can be applied. Subsections (1)a and (1)b of the Article state that if there are no less coercive measures possible, detention can be justified in particular on two grounds. It is important to note that the use of the words ‘in particular’ makes clear that the two listed grounds are meant to be non-exhaustive.[36] According to 15(1) an alien can therefore, inter alia, be detained if:
· There is a risk of absconding as defined by national law;
· The alien avoids or hampers the removal process.
Provisions on procedural safeguards related to detention can also be found in the Directive. Firstly, according to Article 15(2) administrative or judicial authorities shall order detention measures in writing, giving reasons in fact and law. Secondly, section (3) of that Article, states that aliens have a right to appeal against detention at reasonable intervals of time. However, Member States are not obliged to review detentions automatically at reasonable intervals of time. It follows that, in case an alien does not receive free legal advice and for that reason cannot appeal, the right to judicial review of detention is theoretical. Thirdly, according to Article 15(2) Member States are obliged to decide as speedily as possible on appeals. During the negotiations these procedural safeguards have been watered down considerably. For instance, in the initial proposal all detention orders had to be issued by a court and were subjected to obligatory monthly review by a court.[37]
In Article 15(5) the maximum duration of pre-removal detention is limited to a maximum period of six months. This period can, however, be extended with another twelve months. For such extended detention two grounds are listed in Article 15(6), these grounds are meant to be exhaustive. Member States may only extend detention when ‘regardless of all their reasonable efforts the removal operation is likely to last longer owing to:’[38]
· A lack of cooperation of the alien;
· Delays in obtaining the necessary documentation. [39]
From the use of the wording ‘owing to’ it can be deduced that the grounds for extended detention are meant to be exhaustive. Furthermore, Article 15(3) obliges Member States to have extended detention reviewed by courts.
All in all, the Directive sets a maximum on pre-removal detention of 18 months. During the negotiations on the Returns Directive the rules on the duration of pre-removal detention have become stricter. For instance, the period of extended detention has doubled from six to twelve months.[40] In that sense the Returns Directive sanctions long periods of detention to facilitate removal without obliging for an automatic review of this measure by a court. Such a detention regime would be out of the question in criminal law. Human rights advocates and NGO’s, such as Amnesty International, UNHCR and ECRE, have voiced their concern that the Returns Directive will not improve the standards of detaining aliens in the EU.[41] This concern has already been evidenced in Italy, where the maximum period of pre-removal detention has been increased from 60 days to 18 months.[42]
3.1 The Kadzoev Case
Thanks to the case of Mr. Kadzoev,[43] the European Court of Justice has interpreted the detention regime based on Article 15 of the Returns Directive. Considering the fierce criticism on the provisions regarding the use of detention in the Returns Directive, a lot was at stake. For that reason the case was ruled before the Grand Chamber. The case was handled under the urgent preliminary ruling procedure because it dealt with a detained person.[44] It is striking that the case was ruled in November 2009, more than a year before the deadline to transpose the Returns Directive in to national law.[45] This can be explained by the fact that the Bulgarian authorities had already transposed the Directive in national law before the deadline given in the Directive. The subject of the preliminary reference, made by the Sofia city administrative court, was how the maximum period of detention mentioned in Article 15(5) and 15(6) should be calculated.
In the Kadzoev judgment the Court clearly protects the right to liberty of aliens against detention based on the Returns Directive. To achieve this, the Court argues according to the letter and the objective of the Returns Directive. The consequences of this reasoning are far reaching, not only because the ruling safeguards human rights of aliens, but also because it shows shortcomings in EU policy regarding aliens who can’t be removed.[46]
3.2 The Facts.
The facts of the case can be summarized as follows. In October 2006 a Russian man was arrested in Bulgaria near the border of Turkey. This person identified himself as Huchbarov and stated he did not wish to return to Russia. He did not have identification documents and sufficient means of existence; therefore, he was placed in a detention centre for aliens in order to be removed from Bulgaria. A month later, in December 2006, the man calling himself Huchbarov presented a Russian birth certificate and a Chechen identity card issued in the name of Kadzoev. He claimed this was his real identity.[47]
After his arrest, Mr. Kadzoev immediately appealed against removal from Bulgaria to Russia. During the proceedings, which took almost two years, he caused confusion and delay by using both names. Mr. Kadzoev lost the appeal and in 2008 the removal order against him became enforceable. Subsequently, Mr. Kadzoev appealed twice, both times requesting that his detention should be replaced by a less intrusive measure. Both appeals failed. Furthermore, Mr. Kadzoev applied for asylum three times without success.[48]
Despite the considerable efforts made by the Bulgarian authorities the removal of Mr. Kadzoev failed and because no time limit for pre-removal detention existed in Bulgarian law, he was still detained when Bulgaria transposed the Returns Directive into national law in 2009.[49] At this time Mr. Kadzoev had been in detention for almost three years. His detention therefore exceeded the maximum period of 18 months as set out in Article 15 of the Returns Directive. Consequently, when Mr. Kadzoev’s detention was reviewed, his detention had exceeded the maximum of 18 months the Returns Directive and the new Bulgarian law allowed for. For that reason the Sofia city administrative court decided to request the Court of Justice for a preliminary reference related to the interpretation of Article 15(4), 15(5) and 15(6) of the Returns Directive.[50]
3.3 The Questions Raised before the Court of Justice.
The Sofia city administrative court requested the Court of Justice how the maximum period of detention in Article 15 of the Returns Directive should be calculated, what the meaning of a ‘reasonable prospect of removal’ is in regard to this period and whether an alien can be detained on grounds of public order exceeding the maximum period of detention in Article 15. The following questions where presented to the Court.[51]
Question 1a Should the maximum period of detention in Article 15(5) and 15(6) include a period of detention completed before the rules of the Returns Directive became applicable in Bulgaria?
Question 1b Should the maximum period of detention in Article 15(5) and 15(6) include a period of detention completed during asylum applications?
Question 2 Should the maximum period of detention in Article 15(5) and 15(6) include a period of detention completed during appeals against removal?
Question 3 How should the concept of ‘reasonable prospect of removal’ in Article 15(4) be interpreted in relation to the maximum period of detention of the Directive as set out in Article 15(5) and 15(6)?
Question 4 Can an alien be detained on grounds of public order exceeding the maximum period of detention in Article 15(5) and 15(6)?
Answering question 1a the Court held that a period of detention completed before the rules in the Directive became applicable in Bulgaria should be included when calculating the maximum period of detention in Article 15(5) and 15(6).[52] The Court argued that this interpretation was justified because otherwise aliens in detention prior to the entry into force of the Returns Directive could be detained for longer than the maximum period of 18 months. The Court ruled that to legitimize such detention practices would be contrary to the objective of Article 15 of the Returns Directive, namely that detention for removal will in no case exceed 18 months.[53]
It should be noted the Court partially departed from the Opinion of the Advocate General, who had referred to Article 5 ECHR to argue that detention for removal should in no case exceed 18 months. The Advocate General stated that the right to liberty, as enshrined in Article 5 ECHR, demands that the duration of pre-removal detention cannot exceed a reasonable period and should be as short as possible.[54] However, in the judgment no reference to Article 5 ECHR is made, probably because the Court did not want to assess if Bulgarian authorities had breached Article 5 ECHR. While the ECJ can interpret EU law in the light of the ECHR, according to Article 6(3) of the Treaty on the EU, they probably made this choice to avoid intruding in the domain of the European Court of Human Rights.[55]
With regard to question 1b the Court ruled that a period of detention completed during an asylum application should not be included when calculating the maximum period of detention in Article 15(5) and 15(6).[56] The Court argued that detention during an asylum procedure belongs to an essentially different set of legal rules than detention in order to remove an alien.[57] The Court also referred to recital 9 of the Returns Directive, which states that an asylum seeker should be regarded to have legal residence until his or her application is rejected by an official decision. Therefore, the detention during his three asylum applications did not fall under the scope of the Directive.[58]
However, the Court also held that detention during an asylum application can only be excluded from calculating the maximum period of detention in Article 15(5) and 15(6) if this detention is justified by a separate decision based on asylum related detention rules.[59] According to EU law detention during an asylum application can be justified for reasons of public order (Article 7(3) of the Reception Directive).[60] However, it is prohibited for Member States to detain aliens for the sole reason that they have requested for asylum (Article 18(1) Procedures Directive).[61] In other words: a pending removal procedure is no justification to detain an alien who has requested for asylum.
It follows from the reasoning of the Court that when a separate detention order based on the forementioned asylum related rules is lacking and an alien has in fact been detained for the purpose of removal during his or her asylum procedure, this period of detention should be included in the determination of the maximum detention under the Directive. This is an important point because the conditions for detaining an alien during an asylum procedure are considerably stricter than those for detaining an alien for the purpose of removal.[62]
Moreover, this interpretation can be in favour of aliens because Member States will have to include a period of detention during an asylum procedure in the maximum period of pre-removal detention, if no proper detention order existed during this period. Therefore, the maximum period of detention for removal based on Article 15 will be shortened in these circumstances. In this way the Court actually puts an extra procedural safeguard into place that was not contained in the Returns Directive.
Answering question 2 the Court ruled that a period of detention completed during appeals against removal should be included when calculating the maximum period of detention in Article 15(5) and 15(6).[63] To that end the Court argues that the possibility to appeal against removal is foreseen by Article 13(1) and 13(2) of the Returns Directive and detention during such an appeal is not expressly excluded from the maximum period of detention in Article 15(5) and 15(6).[64] Furthermore, the Court held that if detention during appeal would be excluded, the maximum period of detention could vary from case to case within a Member State due to individual differences, or from one Member State to another due to different judicial procedures. According to the Court this would lead to an interpretation contrary to the objective of Article 15(5) and 15(6) of setting an absolute time limit of 18 months on pre-removal detention.[65]
Regarding question 3, the Court firstly held that it is for the national courts to determine whether a reasonable prospect of removal exists.[66] Secondly, the Court ruled that the question whether an alien should be released due to a lack of a reasonable prospect of removal, as mentioned in Article 15(4), is only important while the maximum period of detention has not yet been exhausted.[67] The Court ruled that unconditional release of aliens is mandatory after the maximum period of Article 15 has expired.[68] In other words, an alien can’t be detained longer than 18 months even if a reasonable prospect of removal exists. Finally, the Court held that a reasonable prospect of removal only exists when an alien can actually be removed within the maximum time limit as set in Article 15(5) and 15(6).[69]
Answering question 4 the Court ruled that the maximum period of detention in Article 15(5) and 15(6) can’t be extended on grounds of public order.[70] The Court again argues that if detention on grounds of public order could exceed the maximum time limit, of Article 15(5) and 15(6), this would be contrary to the objective of these provisions.[71] In other words, an alien who is a danger to public order will always have to be released after 18 months of pre-removal detention.
On this point, the Court continues with an obiter dictum ruling that the existence of a threat for public order cannot be a reason for detention on the basis of the Returns Directive.[72] The consequence of this interpretation of Article 15 is far reaching, it implies that the non-exhaustive list for grounds of detention given in Article 15(1) is seriously limited, because detention for public order reasons cannot be based on the Returns Directive.[73] Consequently, according to the reasoning of the Court public order grounds related to an individual cannot justify detention for the purpose of removal.
3.4 The Lacuna in EU migration Law: Regularisation.
After the proceedings it became clear that Mr. Kadzoev could no longer be detained for the purpose of removal. While the case of Kadzoev may seem an extreme example, such cases are commonplace in Europe. What should be done with illegal aliens who can’t be removed, is a lacuna in EU migration policy. When aliens are released without identification documents or legal status they will easily represent a danger to public order if they are going to work in the informal economy or in case they get involved in criminal activities to survive; to which they are practically forced. In Bulgaria and other Member States no policy of regularisation of illegal aliens exists.[74] According to a study commissioned by the Commission there is no common European practice with regard to regularisation; this study concludes that the EU should develop minimum standards for a basic continuous regularisation mechanism in all Member States.[75] However, there is not enough support for regulation in this area.[76]
4.1 The Impact of the Returns Directive on Article 59, VW 2000.
The Returns Directive should have been transposed in national law on 24 December 2010.[77] However, at the moment of writing the Netherlands has not transposed the Directive into national law yet. In this section I will first give general information regarding Article 59, VW 2000, which makes it possible to detain aliens to effectuate their removal from Dutch territory. Secondly, I will discuss what the impact of the Returns Directive is on detention based on Article 59, VW 2000 (abbreviated as Article 59 detention). Thirdly, I will assess Dutch case law on this point and finally, I will analyze the proposed amendment of Article 59, VW 2000.
4.2 Article 59, VW 2000.
In the Netherlands Article 59 detention is an administrative measure to effectuate the return of illegal aliens. In principal, aliens without legal residence should leave the Netherlands voluntarily. However, when an illegal alien doesn’t leave voluntarily he or she can be removed and the use of detention is customary to effectuate such removal. Due to the intrusive nature of detention, this measure is subject to strict procedural safeguards under Dutch law.
According to Article 59.1, VW 2000, the competence to detain aliens belongs to the Minister of Immigration and Asylum. In practice, aliens are detained on behalf of the Minister by a decision from an assistant public prosecutor, who is responsible for monitoring aliens.
An alien can only be detained under Article 59, VW 2000, for the purpose of removal if this is required by public order. This implicitly means that detention should be used as a means of last resort. If an alien is not detained for the purpose of removal, the detention will be unlawful. In the Netherlands courts will always check whether the detention of an alien is aimed at his or her removal.[78] Furthermore, detention should be based on individual reasons that the alien concerned will abscond to avoid removal.[79]
Without a reasonable prospect of removal detention becomes unlawful. Therefore, a reasonable prospect of removal is essential to detain aliens. When a reasonable prospect of removal no longer exists a detained alien has to be released immediately.[80]
4.3 Procedural safeguards.
Procedural safeguards under Article 59, VW 2000, can be found in the Aliens Decision (Vreemdelingen besluit 2000, to be abbreviated as Vb 2000). Firstly, the decision to detain an alien needs to be written, dated and give reasons in fact and law.[81] Secondly, a copy of the detention order should be immediately given to the alien concerned.[82] Thirdly, an alien has a right to be heard before he or she is detained under Article 59, VW 2000.[83] Fourthly, a written police report should also be made of this interrogation[84] Finally, an alien is entitled to legal counsel during this interrogation and should be informed with regard to this right.[85] According to case law, the right to legal counsel before detaining an alien is of essential importance.[86]
The right to appeal against Article 59 detention can be found in Article 94, VW 2000. A district court shall always, on application or automatically, review the initial detention order. If an alien has not appealed himself, an official, on behalf of the Minister of Immigration and Asylum, shall inform a court by the twenty-eighth day after the initial detention decision in order to have it reviewed. Appeals against detention, whether automatic or on application, also serve as a claim for damages.[87]
In case an appeal against the initial detention order fails, aliens can subsequently appeal against continued detention based on Article 96, VW 2000. However, appeals against continued detention are not automatic and aliens will have to appeal themselves. For such appeals aliens will always receive free legal advice in all circumstances.[88]
Finally, appeals against Article 59 detention are always decided on in a court. The first appeal against the initial detention order can also be referred to the highest administrative court in the Netherlands, the Raad van State. Appeals against continued detention are not subject to such a possibility of higher appeal.[89]
What is the effect of the Returns Directive on the procedural safeguards relating to detention of aliens based on Article 59, VW 2000? When taking the procedural safeguards from the Returns Directive into account it becomes clear that the Dutch procedural safeguards are of a higher level than demanded by the Returns Directive. For instance, in the Netherlands aliens are provided with free legal advice in all circumstances.[90] Furthermore, a court always reviews detention, whether it is appealed on application of the alien or automatically reviewed by law.[91] However, from aliens point of view it is of concern that the Returns Directive could be used to lower the standard of these procedural safeguards relating to Article 59, VW 2000, detention in the Netherlands.
4.4 Duration of Detention and its Grounds.
Aliens can be detained on three different grounds within Article 59, VW 2000. Under Article 59.1a and 59.2, VW 2000, aliens without legal status can be detained for removal. The difference between these two grounds is that Article 59.2 detention is only lawful if the documents needed for removal are available or will be available shortly whereas this is not necessary for Article 59.1a detention. Consequently longer periods of detention are justified under Article 59.1a than under Article 59.2.
The third ground for detention can be found in Article 59.1b, VW 2000. According to this provision an alien can also be detained for removal when the concerned person has legal residence due to an application for a residence permit. It follows that if an alien applies for a residence permit when detained under Article 59.1a or 59.2, VW 2000, the legal basis of detention will have to be converted to Article 59.1b, VW 2000. When an application is then rejected the legal basis of detention has to be converted back to Article 59.1a or 59.2, VW 2000.[92] If the detention of an alien is not converted properly the detention will become unlawful.[93]
Article 59.1b detention is essentially aimed at detaining aliens during their request for asylum or application for a residence permit. This detention can be justified by public order in line with Article 7(3) Reception Directive. Furthermore, such detention is in line with Article 18(1) Procedures Directive because it is not based on the sole ground of an asylum application. However, on the other hand it is problematic because it is clear from the wording of Article 59.1b, VW 2000, that such detention is still aimed at removal of the alien. In my opinion it would be preferable if detention, during an asylum request or application for a residence permit, would be distinguished more clearly from detention for the sole purpose of removal. This could, for instance, be achieved by dealing with detention during an asylum request or application for a residence permit in a separate statutory provision without any reference to removal.
4.4.1 Duration of Detention based on Article 59.
The three different grounds within Article 59, VW 2000,[94] each have different provisions regarding the maximum duration of detention.
· Article 59.1a detention is not bound by a maximum statutory time limit. This is confirmed by the explanation of this provision in Dutch policy (the Vreemdelingencirculaire, Vc A/6 5.3.3)
· Article 59.1b detention is limited to a maximum of six weeks for asylum applicants and four weeks for regular applicants (Article 59.4, VW 2000).
· Article 59.2 detention is limited to four weeks (Article 59.4, VW 2000).
Dutch courts strictly observe the time limits as set out in Article 59.4, VW 2000. This provision is therefore in line with the demands of the Returns Directive.
However, as we have seen there is no statutory maximum time limit when detention is based on Article 59.1a, VW 2000. According to paragraph A/6 5.3.5, Vc 2000, the policy which explains how Article 59.1a, VW 2000, should be used, courts will have to assess whether there is a reasonable prospect of removal, whether removal arrangements are in progress and whether they are executed with due diligence. As we have seen such review of detention is automatic with regard to initial detention orders and on appeal of the alien with regard to continued detention.
When detention based on Article 59.1a, VW 2000, exceeds six months the yardstick in judicial review changes. According to the policy on this point the interest of the alien to be released generally outweighs the public interest of removal after six months (paragraph A/6 5.3.5, Vc 2000). However, according to this policy and Dutch case law[95] the period of six months may be exceeded under the following circumstances.
· The alien has been declared ‘Unwished’ due to a serious criminal offence according to Article 67, VW 2000;
· The alien has applied for a residence permit with the apparent goal to delay removal;
· It is ascertained that the alien can be removed in short term;
· The alien has frustrated the investigation to determine his or her identity or nationality.
What is the impact of the Returns Directive on this? It has become clear in the previous sections that the Returns Directive sets an absolute maximum duration on pre-removal detention. The absence of a time limit for detention based on Article 59.1a is in violation of this. Moreover, the first ground for extended detention is related to public order and will fail as a consequence of the Kadzoev judgment.[96] Furthermore, the listed grounds in Article 15(6), Returns Directive, are exhaustive and do not mention existence of criminal antecedents as a ground to extend detention. The second ground could, on the one hand, fail because, according to recital 9 and Article 2(1) of the Returns Directive, an alien who has applied for a residence permit doesn’t fall within the scope of the Directive. On the other hand, an application for a residence permit with the apparent goal to delay removal could be seen as a lack of cooperation by the alien, which is a proper ground to extend detention in line with the Returns Directive. In my opinion this will depend from case to case. The third ground to extend detention will fail because the fact that an alien can be removed in short term is not listed in the exhaustive list of Article 15(6), Returns Directive. Therefore, only the fourth ground to extend detention will remain legitimate to extend detention after six months because it is explicitly listed in Article 15(6)a, Returns Directive.
Finally, the question arises if the period of detention completed under Article 59.1b, VW 2000, should be included to determine the maximum period of detention in Article 15(5) and 15(6) of the Returns Directive. In the Kadzoev judgement the Court ruled that detention during an asylum application can only be excluded from calculating the maximum period of detention in Article 15(5) and 15(6) if this detention is justified by a separate decision based on asylum related detention rules.[97] As we have seen Article 59.1b is in line with Article 7(3) Reception Directive and Article 18(1) Procedures Directive. On the other hand, it is apparent from the wording of Article 59.1, VW 2000, and paragraph A/6 5.3.3.5, Vc 2000, that the aim of such detention continues to be removal. That said, the period of detention based on Article 59.1b, VW 2000, could be included in calculating the maximum period of detention in the sense of the Returns Directive. I believe this will remain problematic if the amendment of the Returns Directive does not contain a separate statutory provision to deal with detention during an asylum request or application for a residence permit where no reference to removal is made.
4.4.2 Grounds for Detention based on Article 59.
As mentioned, an alien can only be detained based on Article 59, VW 2000, in last resort if this is in the interest of public order. This requires that a suspicion exists that an alien will abscond to avoid removal. This suspicion needs to be justified by individual facts and circumstances concerning the alien. There are a number of grounds for the detention of aliens. These can be found in paragraph A6/5.3.3.1 of the Vreemdelingencirculaire (Vc).[98] Which is not a statutory law but a policy document explaining the use and interpretation of the Dutch Aliens act.
In general public order justifies the detention of aliens if such detention can facilitate their removal. More specifically, paragraph A6/5.3.3.1 Vc provides the following grounds to detain an alien for the purpose of removal.
· Risk of absconding;
· Existence of criminal antecedents;
· Withdrawal from supervision after illegal entry;
· Non compliance with the obligation to return;
· Lack of cooperation in establishing identity, nationality and travelled route;
· Multiple applications with different identities;
· Loss of essential travel documents such as a passport;
· The use of forged documents;
· Absence of a residential address;
· Absence of sufficient means of subsistence;
· Working without a work permit.[99]
What is the impact of the Returns Directive on the grounds for Article 59 detention? This impact is considerable because it is commonplace in the Netherlands to justify Article 59 removal detention, by referring to individually related public order grounds. However, taking the Kadzoev judgement in account such individually related public order grounds have become unlawful to justify detention. Therefore, the following grounds in paragraph A6/5.3.3.1 of the Vreemdelingencirculaire, will no longer be legitimate in the light of the Returns Directive to justify Article 59 detention.
· Existence of criminal antecedents;[100]
· Absence of sufficient means of subsistence;
· Absence of a residential address;
· Working without a work permit.[101]
The other individual grounds given in the the Vreemdelingencirculaire - namely: risk of absconding, withdrawal from supervision after illegal entry, non compliance with the obligation to return, multiple applications with different identities, loss of essential travel documents, the use of forged documents, lack of cooperation in establishing identity, nationality and travelled route - will in my opinion remain legitimate under the Returns Directive to justify Article 59 removal detention.
However, it should be noted that Article 3(7) of the Returns Directive demands that national law will contain objective criteria to ascertain under what conditions an individual risk of absconding exists. Such a law does not yet exist in the Netherlands. Therefore, the amendment to transpose the Directive will have to deal with this issue.[102]
4.5 Detention as Last Resort.
According to paragraph A6/5.3.3.3 Vc an alien should not be detained under Article 59, VW 2000, if a less intrusive measure can be used. For instance, if a duty to report regularly based on Article 54.1f, VW 2000, could be used instead of detention. Another reason for abstaining from detention under Article 59, VW 2000, is the existence of a permanent residential address. As mentioned before the wording ‘when public order requires’ in Article 59.1, VW 2000, implies that detention should only be used in last resort.
This is in conformity with international human rights law demands that detention of aliens can only be justified when this is necessary and proportional.[103] For instance, in the case C v. Australia the Human Rights Committee of the International Covenant on Civil and Political Rights has ruled that ‘less evasive means of achieving the same end’[104] should also be considered when pre-removal detention is ordered.
The Returns Directive in this respect gives a clear and explicit message. Article 15(1) states that detention should only be used in last resort if no other less coercive measures can be applied. This is already implied in Article 59, VW 2000. Examples of such less intrusive measures can be found in paragraph A6/5.3.3.3 Vc. However, according to Amnesty International, the alternatives to pre-removal detention are hardly used in Dutch practice and their research shows that in Dutch detention cases there is a lack of substantive arguments for not using alternatives instead of detention.[105]
4.6 Case Law Relating to Article 59 and the Returns Directive.
How have Dutch courts used the Returns Directive to rule on appeals against Article 59 detention? Before the deadline to transpose the Returns Directive expired on 24 December 2010 only two cases were published as precedents. In the first case the appeal against detention based on the Returns Directive failed because the transposition period had not yet expired.[106] In the second case it was ruled that Article 59.1b detention, was legitimate in the light of the Returns Directive and the Asylum Procedure Directive.[107] Referring to the strict separation in the Kadzoev judgment between detention during an asylum procedure and detention for the purpose of removal, the applicant had claimed that detention based on Article 59.1b, VW 2000, which is essentially aimed at removal, would be unlawful in the light of the Asylum Procedure Directive. However, the Raad van State did not agree with this and ruled that detention based on Article 59.1b, VW 2000, was lawful in the light of the asylum Procedure Directive because the legal basis between Article 59.1a and 59.1b, VW 2000, was sufficiently different. The case is silent on the matter whether detention based on Article 59.1b, VW 2000, should or shouldn’t be counted when calculating the maximum duration of detention according to the Returns Directive. As already mentioned before, in my opinion this period of detention will have to be calculated because the aim of such detention continues to be removal.
After the transposition period of the Returns Directive had expired on the 24th of December 2010 a huge amount of appeals against Article 59 detention based where published as precedents. According to my research 81 judgments dealing with the subject of Article 59 detention in relation to the Returns Directive have been published in less than seven weeks.[108]
In 35 cases the appeal based on the Returns Directive against Article 59, VW 2000, detention was successful.[109] These successful appeals can be divided into four categories. Firstly, there were cases where individual public order grounds where used to justify detention contrary to the Returns Directive.[110] This makes clear that the judges have understood the severe consequences of the Kadzoev Judgement on Dutch detention practice. Secondly, appeals succeeded because detention had not been used as last resort.[111] In my opinion Article 59 in itself did not force judges to asses this prior to the Returns Directive because it is not explicitly stated that detention should be used as a means of last resort. In this regard, it is interesting that the Returns Directive has forced Dutch courts to give substantive arguments for the use detention instead of alternative measures. Thirdly, it was judged that detention was illegitimate because no return decision had been issued before the alien was placed in detention.[112] This makes clear the system of procedural safeguards in the Netherlands is of a high level. For instance, if no free legal advice or automatic review of detention existed in the Netherlands these aliens would probably still have been detained. Fourthly, there were cases where detention was ruled to be illegitimate because no objective criteria to define the risk of absconding exist in Dutch statutory law, as demanded by Article 3(7) of the Returns Directive.[113] In this last category of cases it becomes clear that Dutch judges do not accept that the policy of the Vreemdelingencirculaire - more specifically paragraph A/6 5.3.3.1 Vc, which explains on what grounds an alien can be detained - can be interpreted as statutory law.
Furthermore, it should be noted that Dutch courts have not been able to give a clear answer whether Article 59.1a detention can be extended after six months by interpreting Dutch law according to the Returns Directive. On the one hand, there were successful appeals against continued detention where it was ruled that detention could not be extended after six months in line with the Returns Directive because it had not been transposed into national law.[114] On the other hand, contradictory judgments could also be found where extended detention was judged to be lawful because Article 59, VW 2000, could be interpreted according to the Returns Directive.[115] In my opinion Dutch law can be interpreted according to the Returns Directive and Article 59 detention can be extended after six months because the provisions on this subject in the Returns Directive are clear enough to have direct effect. However, to extend detention it is absolutely necessary that one of the two exhaustive grounds for extended detention of Article 15(6), Returns Directive, has been met with.
It has become clear from the discussed case law that, since the period of transposition has expired on 24 December 2010, the effects of the Returns Directive on Article 59, VW 2000, are considerable. Firstly, the Returns Directive explicitly states detention should be used as a means of last resort. Secondly, the Returns Directive makes individual public order grounds to detain an alien unlawful. Thirdly, the Returns Directive limits the maximum period of detention to 18 months. Fourthly, the capability to extend detention after six months is limited. Finally, the existing policy rules to define the ‘risk of absconding’ can not be used.
4.7 The Proposed Amendment of Article 59.
How does the proposed amendment of Article 59, VW 2000, deal with these issues? I will first address what provisions are amended correctly in the light of the Returns Directive before dealing with the more problematic sides of the amendment.
In the proposed amendment two important provisions are added to Article 59, VW 2000. The first provision limits the maximum duration of detention based on Article 59.1a to a period of six months;[116] the second provision provides for the possibility of extending the maximum period of six months with another twelve months due to a lack of cooperation by the alien or due to delays in obtaining the necessary documentation from third countries.[117] The maximum period of detention and the grounds for extended detention as set out in the amendment of Article 59 are therefore in line with the Returns Directive.
Furthermore, a third provision[118] is added to Article 59, Vw 2000, which states that the aforementioned maximum period of detention of 18 months is also applicable to detention based on Article 6, VW 2000. Such detention is an administrative measure to detain aliens who are refused entry before they have passed the border in accordance with Article 13 of the Schengen Borders Code. This thesis does not deal with such detention. However, it should be noted that, with exception of the maximum time limit of 18 months, the Netherlands will not apply the Returns Directive to detention of aliens based on Article 6, VW 2000.[119] This is in line with the Returns Directive because according to Article 2(1)a of the Directive these aliens can be excluded from its scope.
The proposed amendment, furthermore, clarifies that a period of detention based on Article 59.1b, Vw 2000, should not be included when calculating the maximum period of detention. Thereto reference is made to the Kadzoev judgement and it is stated that Article 59.1b is a sufficiently different legal basis to justify the detention of asylum seekers and other applicants for a residence permits.[120] In this way the amendment makes it possible to exclude a period of detention based on article 59.1b from the total amount 18 months of pre-removal detention. In principal this is lawful under the Returns Directive, this has also been confirmed by the Raad van State. However, in my opinion it would be better if no reference to removal would be made in Article 59.1b, VW 2000, because essentially the aim of this detention continues to be the removal of the alien.
With regard to detention that is extended after six months, Article 94, VW 2000, is amended in line with Article 15(3), Returns Directive. An extra provision is added to Article 94, Vw 2000, stating that extended detention will be reviewed automatically by a district court.[121] Such automatic review of extended detention will be subject to the same rules as the already existing automatic review of initial detention orders.[122] This entails that if extended detention is not reviewed by a district court within 42 days an alien will have to be released.[123] In other words, extended detention will always be automatically reviewed. Such automatic review of extended detention is not obliged by the Returns Directive. Therefore, the choice of the Netherlands for automatic review of extended detention testifies that the Netherlands has chosen for a higher level of procedural safeguards than demanded by the Returns Directive. Furthermore, a higher appeal against extended detention will become possible.[124]
In some aspects, however, the proposed amendment does not properly transpose the Returns Directive into Dutch law. For instance regarding the use of detention as last resort the amendment does not change the current wording of Article 59, Vw 2000. It will not be explicitly stated that pre-removal detention of aliens should only be used as a means of last resort.[125] When the Minister of Immigration and Asylum was asked if it would be desirable to add a statutory provision explicitly stating that detention should only be used in last resort,[126] he answered that in the current wording of Article 59, Vw 2000, it is implied that detention should only be used as last resort. Therefore, an explicit statutory provision would not be necessary.[127] I don’t agree with the Minister of Immigration and Asylum on this point. Research of Amnesty International shows that detention decisions often lack substantive arguments for not using alternatives instead of detention.[128] This finding is strengthened by my own research showing that Dutch courts are now using Article 15(1) of the Returns Directive to rule that detention was not used in last resort.[129] Therefore, the proposed amendment may be said to not properly reflect the demand of the Article 15(1) of the Returns Directive that Article 59, VW detention, should only be used as a means of last resort.
According to Article 3(7), Returns Directive, national law should define the risk of absconding. To this end the proposed amendment states that the existing policy rules in paragraph A6/5.3.3.1 Vc, as discussed above, will be incorporated into statutory law without substantive changes.[130] However, this paragraph of Dutch policy is not lawful in the light of the Returns Directive and the existing policy rules in paragraph A6/5.3.3.1, Vc, will have to be changed substantially to establish objective criteria to determine when a risk of absconding exists.
In this regard the question arises whether individual public order grounds could be used to determine an existing risk of absconding despite the fact they cannot be used to justify detention.[131] Would it for instance be lawful under the Returns Directive to determine an existing risk of absconding due to the fact that an alien has criminal antecedents? If this would be possible, individual public order grounds are essentially still used to justify pre-removal detention by their determining an existing risk of absconding. However, in the proposed amendment, the question whether individual public order grounds can be used to determine an existing risk of absconding despite the Kadzoev judgment is not addressed. But it is clear that if public order grounds are used as objective criteria to ascertain an existing risk of absconding, as proposed in the amendment, Article 59, VW 2000, detention will be indirectly based on public order grounds, contrary to the interpretation of the Returns Directive as given in paragraph 70 of the Kadzoev Judgement.
In the mentioned paragraph of the judgment, it is explicitly stated that the possibility of detaining a person on grounds of public order and public safety cannot be based on the Returns Directive. In this sense the proposal of the amendment to incorporate the existing policy rules in paragraph A6/5.3.3.1 Vc into statutory law are not in line with the Returns Directive. This is also witnessed by my research of Dutch appeals against detention based Article 59, VW 2000, where in many cases appeals succeeded with a reference to paragraph 70 of the Kadzoev judgment because individual related public order grounds in paragraph A6/5.3.3.1 Vc had been used to justify detention.[132]
It is further doubtful whether the Dutch Minister of Immigration and Asylum has actually understood the Kadzoev Judgement. For instance, in the explanatory memorandum of the proposed amendment it is stated that criminal antecedents can still be taken in account to justify detention of aliens.[133] On top of this the amendment nowhere mentions that public order grounds have become illegitimate to detain an alien.[134] This lack of understanding of the Kadzoev Judgement is further evidenced by the answer of the Minister to the question what will happen to aliens after they have been in detention for 18 months.[135] According to the Minister aliens who have already served 18 months of pre-removal detention and are released can subsequently again be placed in Article 59 detention if they do not leave and continue to reside illegally in the Netherlands.[136] However, this is not in line with the Kadzoev judgement. If an alien is released after 18 months of pre-removal detention and could again be detained for the purpose of removal this would be contrary to the objective of Article 15, Returns Directive.[137] It follows, the maximum time limit of 18 months is absolute and that Member States may in no event exceed this period.
To finish this section I will make a last remark on the use of re-entry bans in the proposed amendment. Initially, the Minister of Immigration and Asylum had chosen to transpose, Article 11(1), Returns Directive, which deals with re-entry bans, in such a way that the issuing of re-entry bans would be facultative.[138] This means that no obligation to issue a re-entry ban would exist in Dutch law. However, following the 2010 elections the coalition between the labour party and christian democrats was replaced by a coalition between the liberal party and the christian democrats and the new Minister of Immigration and Asylum changed this provision in the proposed amendment making re-entry bans obligatory if no period for voluntary departure has been granted to an alien, or if the obligation to return has not been complied with by an alien. It is true that this is more in line with Article 11(1), Returns Directive.[139] However, the new Minister of Immigration and Asylum has also proposed that aliens can be sanctioned according to criminal law for illegal stay in violation of a re-entry ban.[140] It is proposed such illegal stay will be punishable with a penalty of criminal detention up to six months according to Article 108, VW 2000, and Article 197 of the Wetboek van Strafrecht (Dutch Penal Code).
Is such a criminal sanction to enforce re-entry bans in line with the Returns Directive? Is the new Minister right to claim such a severe measure is necessary to transpose the Returns Directive into Dutch law?[141] To punish violation of a re-entry ban with criminal detention could be contrary to the objective of the Returns Directive in case this detention is used to remove the person concerned and he or she has already been in detention for 18 months. The Returns Directive essentially aims to set an absolute limit of 18 months to pre-removal detention.[142] However, it is not stated in the Returns Directive that when 18 months of detention for the purpose removal is completed this precludes detention, based on criminal law, to enforce a re-entry ban.[143]
This sanction once and again shows that there is a lacuna in EU migration law with regard to aliens, such as Mr. Kadzoev, who can’t be removed and have completed 18 months of pre-removal detention. It is true that states have the absolute right to control the entrance and residence of foreign nationals in their territory.[144] On the other hand, Community law and international human rights law also protect aliens. In absence of a basic continuous regularisation mechanism, aliens in the Netherlands, who are not eligible for legal residence and who can’t be removed, are condemned to reside illegally running the risk to be detained under criminal law if they do not comply with a re-entry ban.
5 Conclusion.
The European Parliament has received fierce criticism for its acceptance of the Returns Directive because it justifies a harsh European removal regime that authorizes long periods of detention combined with a low standard of procedural safeguards. It has become clear that detention based on Article 59, VW 2000, has higher procedural safeguards than the Returns Directive demands, such as automatic review of detention by courts and free legal advice.
However, at the same time the Returns Directive will significantly limit the ability of Dutch authorities to detain aliens based on Article 59, VW 2000. Firstly, the Returns Directive explicitly states detention should be used as a means of last resort. Secondly, the Returns Directive makes individual public order grounds to detain an alien illegitimate. Thirdly, the Returns Directive limits the maximum period of detention to 18 months. Fourthly, the capability to extend detention after six months is limited and finally, the existing policy rules to define the ‘risk of absconding’ cannot be used until they are changed into statutory law.
Therefore, my conclusion is that the Returns Directive will cause fewer aliens to be detained based on Article 59, VW 2000. This loss of power to detain aliens will be compensated if illegal stay in violation of a re-entry ban will become a criminal offence in the Netherlands.
My second conclusion is that the proposed amendment of Article 59, VW 2000, does not properly transpose the Returns Directive in national law because individual public order grounds are still used to define the risk of absconding to justify pre-removal detention indirectly. It is clear that more research is needed to assess how individual public order grounds can be used to define the risk of absconding. Furthermore research is needed to find out if the Returns Directive justifies the use of criminal law to combat illegal stay.
Future litigation will eventually decide on these matters and disclose if the proposed amendment is in fact a correct transposition of the Returns Directive. Therefore, the ECJ will have the final say regarding these matters of core state sovereignty, evidencing that Europe is moving towards a new political reality going beyond the traditional conception of the nation state.
APPENDIX
After writing this thesis the Raad van State has made a judgment confirming my most important conclusion (LJN: BP9284, Raad van State, 201100555/1/V3). On the 21st of March the Raad van State ruled that paragraph 70 of the Kadzoev judgment entails that detention of aliens on individual public order grounds cannot be based on the Returns Directive. The argument of the Minister of Immigration and Asylum that paragraph 70 of the Kadzoev judgment only applied after 18 months of removal detention was dismissed.
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· Quinn v. France Application No.18580/91, 22 March 1995.
· Saad v. the United Kingdom [GC], no. 13229/03, § 65, ECHR 2008.
· Riad and Idiab v. Belgium , nos. 29787/03 and 29810/03, § 70, ECHR 2008.
· Human Rights Committee, Communication No 560/1993: Australia. 30/04/97. CCPR/C/59/D/560/1993.
· Human Rights Committee, C v. Australia, Case No. 900/1999, 13 November 2002.
· Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 1 tm. 6.
· Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 7 tm. 11.
· ABRS, 9 April 2002, 200201480/1
· ABRS, 31 July 2002, 200203208, JV 2002/317 &
· ABRS, 14 August 2002, 200203861/1 JV 2002/342
· ABRS, 21 February 2003, 200206775/1
· ABRS, 21 April 2010, 201000508/1/V3
· Rb ‘s-Gravenhagen, Rechteenheidskamer, Awb 97/4847 & Awb 97/4849, 21 August 1997
· Rb. ‘s-Gravenhage, zp. Amsterdam, Awb 02/66091, 5 September 2002
· Rb 's-Gravenhage , ZP Utrecht , AWB 10/42764, 30 December 2010;
· Rb 's-Gravenhage , AWB 10/42404, 30 December 2010;
· Rb 's-Gravenhage , AWB 10/43727, 30 December 2010;
· Rb 's-Gravenhage , ZP Roermond , AWB 10/43410, 3 January 2011;
· Rb 's-Gravenhage , ZP Roermond , 10/44094 en 10/44813, 6 Janury 2011;
· Rb 's-Gravenhage , AWB 10/43573, 4 January 2011;
· Rb 's-Gravenhage , Awb 10/44468. 7 January 2011.
· Rb 's-Gravenhage , ZP Zwolle , 10/44478, 10 January 2011;
· Rb 's-Gravenhage , Awb 10/43723, 10 January 2011;
· Rb. ‘s-Gravenhage, Awb 09/47796, 11 January 2010
· Rb 's-Gravenhage , ZP Zwolle , 10/44474 en 11/331, 11 January 2011;
· Rb 's-Gravenhage , ZP Rotterdam , 10/43493, 12 January 2011;
· Rb 's-Gravenhage , AWB 11 / 140, 13 January 2011;
· Rb 's-Gravenhage , AWB 10/44291 en AWB 10/44292, 13 January 2011.
· Rb 's-Gravenhage , AWB 10/43078, 14 January 2011.
· Rb 's-Gravenhage , ZP 's-Hertogenbosch , Awb 10/43890, 18 January 2011.
· Rb 's-Gravenhage , AWB 10/44933, 19 January 2011.
· Rb 's-Gravenhage , ZP Rotterdam , 10/43401 en 10/44171, 19 January 2011.
· Rb 's-Gravenhage , AWB 10/44491, 20 January 2011;
· Rb 's-Gravenhage , 10 / 44420 en AWB 11/872, 21 January 2011;
· Rb 's-Gravenhage , AWB 10/44825, 21 January 2011;
· Rb 's-Gravenhage , AWB 10/44738, 24 January 2011;
· Rb 's-Gravenhage , ZP Groningen , Awb 11/1100, 28 January 2011;
[1] Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008, on common standards for returning illegally staying third-country nationals. OJ L 348/98 24.12.2008
[2] idem
[3] Dutch Aliens Act
[4] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24,
[5] J. Shaw, J. Hunt & C. Wallace, Economic and Social Law of the European Union, Palgrave Macmillan, 2007, Chapter 13.
[6] Idem
[7] Seville European Council, June 2002
[8] J. Shaw, J. Hunt & C. Wallace, Economic and Social Law of the European Union, Palgrave Macmillan, 2007, Chapter 13
[9] Brussels European Council Conclusions, 4/5 November 2004, p. 23.
[10] COM (2005) 391 final
[11] D. Acosta, The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly?(The Adoption of Directive 2008/15: The Returns Directive) published in ‘European Journal of Migration and Law 11 (2009)’.
[12] Council Document 9829/08
[13] European Parliament Press Release 200806161PR31785
[14] D. Acosta, The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly?(The Adoption of Directive 2008/15: The Returns Directive) published in ‘European Journal of Migration and Law 11 (2009)’. pp. 37-38
[15] ECRE press release: Returns Directive: EU fails to uphold human rights, 18 June 2008; United Nations press release: United Nations experts express concern about the proposed European Union Return Directive, 18 July 2008; EU observer: Latin America could halt EU trade talks over Return Directive, 23 June 2008; Europolitics: LatAm countries outraged by Return Directive, 23 June 2008; and the Amnesty International press release: EU Returns Directive affects dignity and security of irregular migrants, 4 July 2008.
[16] D. Acosta, The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly?(The Adoption of Directive 2008/15: The Returns Directive) published in ‘European Journal of Migration and Law 11 (2009)’. p. 39
[17] UNCHR, Position on the Proposal for a Directive on Common Standards and Procedures in MemberStates for Returning Illegally Staying Third-Country Nationals, 16 June 2008
[18] Council Document 13195/07 (3 October 2007)
[19] A. Baldaccini, The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive, published in the European Journal of Migration and Law, 2009. p. 3
[20] COM (2005) 391 final, Article 6(4)
[21] A. Baldaccini, The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive, published in the European Journal of Migration and Law, 2009. p.7
[22] A. Baldaccini, The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive, published in the European Journal of Migration and Law, 2009. p.8
[23] ECRE, Information note on the Directive 2008/115/EC of the European Parliament and the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (CO7/1/2009/Ext/MDM). p. 15
[24] A. Baldaccini, The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive, published in the European Journal of Migration and Law, 2009. p.9
[25] In the Netherlands this exception was used in the proposed amendment of Article 67, VW 2000 (Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3. p. 8 & 17). However, after the 2010 elections the new government changed the amendment making re-entry bans obligatory in line with Article 11(1) Returns Directive. (Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 9 p.1)
[26] UNHCR, Position on the Proposal for a Directive on Common Standards and Procedures in Member States for Returning Iilegally Staying Third-Country Nationals, 16 June 2008. p.4
[27] Conka v. Belgium, Application No 51564/99, 5 February 2002. par. 61
[28] Council Directive 2005/85/EC, On minimum standards on procedures in Member States for granting and withdrawing refugee status. Article 15(3).
[29] D. Acosta, The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly?(The Adoption of Directive 2008/15: The Returns Directive) published in ‘European Journal of Migration and Law 11 (2009)’. p. 36
[30] D. Acosta, The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly?(The Adoption of Directive 2008/15: The Returns Directive) published in ‘European Journal of Migration and Law 11 (2009)’. p. 32
[31] Returns Directive 2008/115/EC, p. 35
[32] A. Baldaccini, The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive, published in the European Journal of Migration and Law, 2009. p. 13
[33] N. Mole & C. Harby, Immigration, Asylum and Detention, ECRE & AIRE, June 2004. p.9
[34] ECHR, Article 5(1)f
[35] Chahal v. the United Kingdom Application No. 22414/93, 15 November 1996 & Quinn v. France Application No.18580/91, 22 March 1995, amongst others.
[36] A. Baldaccini, The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive, published in the European Journal of Migration and Law, 2009. p. 13
[37] COM (2005) 391 final, Article 14
[38] Returns Directive 2008/115/EC. Article 15(6)
[39] Returns Directive 2008/115/EC. Article 15(6)
[40] COM (2005) 391 final, Article 14
[41] Amnesty International and ECRE, Letter of 6 September 2007 Calling on MEP’s not to vote for such a shocking and excessive EU standard.
[42] A. Baldaccini, The Return and Removal of Irregular Migrants under EU Law: An Analysis of the Returns Directive, published in the European Journal of Migration and Law, 2009. p. 15
[43] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24,
[44] Articles 68 EC and 234 EC Article 104b of the Rules of Procedure
[45] The judgement is dated 30 November 2009 while the Returns Directive had to be transposed on 24 December 2010.
[46] E. Mincheva, Case Report on Kadzoev, 30 November 2009, published in the European Journal of Migration and Law 12 (2010) p.362
[47] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par 13-30
[48] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par 13-30
[49] E. Mincheva, Case Report on Kadzoev, 30 November 2009, published in the European Journal of Migration and Law 12 (2010) p.364
[50] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par 13-30
[51] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 30, 34, 40, 49, 58 & 68
[52] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 39
[53] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 37
[54] View of the Advocate General Mazák ,10 November 2009, Case C-357/09 PPU. Par. 52
[55] E. Mincheva, Case Report on Kadzoev, 30 November 2009, published in the European Journal of Migration and Law 12 (2010) p. 366
[56] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 48
[57] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 45
[58] Returns Directive 2008/115/EC. Article 2.1
[59] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 47
[60] Directive 2003/9/EC of the the Council, 27 january 2003, laying down minimum standards for the reception of asylum seekers.
[61] Directive 2005/85/EC of the the Council, 1 december 2005, on standards on procedures in Member States for granting and withdrawing refugee status.
[62] Article 18(1) of Directive 2005/85. States that someone can’t be detained just because he is an asylumseeker. Under Directive 2003/9, detention of asylum seekers is possible for reasons of public order. Furthermore the following cases are important. ECHR, Saad v. the United Kingdom [GC], no. 13229/03, § 65, ECHR 2008; ECHR, Riad and Idiab v. Belgium , nos. 29787/03 and 29810/03, § 70, ECHR 2008 and Human Rights Committee, Communication No 560/1993: Australia. 30/04/97. CCPR/C/59/D/560/1993, paragraph 9.3.
[63] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 57
[64] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 51 & 52
[65] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 54
[66] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 64 & 65
[67] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 62
[68] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 60
[69] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 67
[70] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 71
[71] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 69
[72] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 70
[73] E. Mincheva, Case Report on Kadzoev, 30 November 2009, published in the European Journal of Migration and Law 12 (2010) p. 370
[74] E. Mincheva, Case Report on Kadzoev, 30 November 2009, published in the European Journal of Migration and Law 12 (2010) p. 369
[75] ICMPD, Study on practices in the area of regularisation of illegally staying third-country nationals in theMember States of the EU, Ref. JLS/B4/2007/05, Vienna, January 2009,
[76] E. Mincheva, Case Report on Kadzoev, 30 November 2009, published in the European Journal of Migration and Law 12 (2010) p. 370
[77] Returns Directive 2008/115/EC. Article 20
[78] ABRS, 21 February 2003, 200206775/1
[79] ABRS, 9 April 2002, 200201480/1
[80] Article 5.4.3 Vreemdelingen besluit (Vb) & ABRS, 23 April 2002, 200201610 & ABRS 5 February 2003, 200206795/1
[81] Article 5.3.1 Vb
[82] Article 5.3.1 Vb
[83] Article 5.2.1 Vb
[84] Article 5.2.4 Vb
[85] Article 5.2.5 Vb
[86] Rb. ‘s-Gravenhage, zp. Amsterdam, Awb 02/66091, 5 September 2002
[87] Article 94 VW 2000
[88] Amnesty International, The Netherlands: Detention of Irregular Migrants and Asylum Seekers, June 2008. P. 19
[89] Article 95 VW 2000 & Amnesty International, The Netherlands: Detention of Irregular Migrants and Asylum Seekers, June 2008. P. 19
[90] Amnesty International, The Netherlands: Detention of Irregular Migrants and Asylum Seekers, June 2008. P. 19
[91] Article 94 & 96 VW 2000
[92] Article 5.3.2 Vb
[93] ABRS, 31 July 2002, 200203208, JV 2002/317 & ABRS, 14 August 2002, 200203861/1 JV 2002/342
[94] Article 59.1a (illegal stay), Article 59.1b (legal stay during an application) and Article 59.2 (prospect of immediate removal).
[95] Rb ‘s-Gravenhagen, Rechteenheidskamer, Awb 97/4847 & Awb 97/4849, 21 August 1997
[96] It should be noted that Member States may exclude aliens from the scope of the Directive who are subject to return due to a criminal law sanction (Returns Directive 2008/115/EC. Article 2(2) a and b). However, the Netherlands has not chosen to exclude such aliens from the scope of the Returns Directive (Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, Memorie van Toelichting, p. 7).
[97] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 47
[98] The policy document concerning the Aliens Act
[99] A6/5.3.3.1 Vc 2000
[100] It should be noted that Member States may exclude aliens from the scope of the Directive who are subject to return due to a criminal law sanction (Returns Directive 2008/115/EC. Article 2(2)b). However, the Netherlands has not chosen to exclude such aliens from the scope of the Returns Directive (Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, Memorie van Toelichting, p. 7).
[101] A6/5.3.3.1 Vc 2000
[102] Rechtbank 's-Gravenhage , AWB 10/44825, 21 January 2011
[103] Amnesty International, Irregular Migrants and Asylum Seekers, Alternatives to Immigration Detention, April 2009. P. 7
[104] Human Rights Committee, C v. Australia, Case No. 900/1999, 13 November 2002. Paragraph 8.2
[105] Amnesty International, The Netherlands: Detention of Irregular Migrants and Asylum Seekers, June 2008. P. 25
[106] Rb. ‘s-Gravenhage, Awb 09/47796, 11 January 2010
[107] ABRS, 21 April 2010, 201000508/1/V3
[108] As checked on www.rechtspraak.nl on 7 February 2011
[109] As checked on www.rechtspraak.nl on 7 February 2011
[110] RB 's-Gravenhage , ZP Zwolle , 10/44478, 10 January 2011;
RB 's-Gravenhage , ZP Zwolle , 10/44474 en 11/331, 11 January 2011;
RB 's-Gravenhage , AWB 10/44291 en AWB 10/44292, 13 January 2011.
[111] RB 's-Gravenhage , AWB 10/43573, 4 January 2011;
RB 's-Gravenhage , AWB 10/43727, 30 December 2010;
RB 's-Gravenhage , AWB 10/43078, 14 January 2011.
[112] RB 's-Gravenhage , ZP Utrecht , AWB 10/42764, 30 December 2010;
RB 's-Gravenhage , AWB 11 / 140, 13 January 2011;
RB 's-Gravenhage , AWB 10/44933, 19 January 2011.
[113] RB 's-Gravenhage , AWB 10/44825, 21 January 2011;
RB 's-Gravenhage , AWB 10/44738, 24 January 2011;
RB 's-Gravenhage , Awb 10/44468. 7 January 2011.
[114] RB 's-Gravenhage , 10 / 44420 en AWB 11/872, 21 January 2011;
RB 's-Gravenhage , ZP Roermond , AWB 10/43410, 3 January 2011;
RB 's-Gravenhage , ZP Roermond , 10/44094 en 10/44813, 6 Janaury 2011;
RB 's-Gravenhage , ZP Rotterdam , 10/43493, 12 January 2011;
RB 's-Gravenhage , ZP Rotterdam , 10/43401 en 10/44171, 19 January 2011.
[115] RB 's-Gravenhage , Awb 10/43723, 10 January 2011;
RB 's-Gravenhage , ZP Groningen , Awb 11/1100, 28 January 2011;
RB 's-Gravenhage , AWB 10/42404, 30 December 2010;
RB 's-Gravenhage , AWB 10/44491, 20 January 2011;
RB 's-Gravenhage , ZP 's-Hertogenbosch , Awb 10/43890, 18 January 2011.
[116] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 2, Voorstel van Wet, p.2.
[117] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 2, Voorstel van Wet, p.2.
[118] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 2, Voorstel van Wet, p.2.
[119] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, Memorie van Toelichting, p. 6.
[120] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, Memorie van Toelichting, p. 15.
Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 4, Advies van de Raad van State en Nader Rapport, p. 7 & 15.
[121] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 2, Voorstel van Wet, p.4.
[122] Article 94 Vw 2000.
[123] Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 7 Nota naar Aanleiding van het Verslag, p. 12.
[124] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, Memorie van Toelichting, p. 20 & 21.
[125] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, Memorie van Toelichting, p. 7.
[126] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 6, Verslag, p.7.
[127] Tweede Kamer, vergaderjaar 2010–2011, 32 420, 23 September 2010, nr. 7 Nota naar Aanleiding
van het Verslag, p. 15.
[128] Amnesty International, The Netherlands: Detention of Irregular Migrants and Asylum Seekers, June 2008. P. 25
[129] RB 's-Gravenhage , AWB 10/43573, 4 January 2011;
RB 's-Gravenhage , AWB 10/43727, 30 December 2010;
RB 's-Gravenhage , AWB 10/43078, 14 January 2011.
[130] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, Memorie van Toelichting, p. 6.
Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 7 Nota naar Aanleiding van het Verslag, p. 5&6.
[131] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 70
[132] RB 's-Gravenhage , ZP Zwolle , 10/44478, 10 January 2011;
RB 's-Gravenhage , ZP Zwolle , 10/44474 en 11/331, 11 January 2011;
RB 's-Gravenhage , AWB 10/44291 en AWB 10/44292, 13 January 2011.
[133] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, Memorie van Toelichting, p. 7.
[134] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 1 tm. 6.
Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 7 tm. 11.
[135] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 6, Verslag, p.9.
[136] Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 7 Nota naar Aanleiding van het Verslag, p. 22.
[137] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 24, 37, 54 & 69.
[138] Tweede Kamer, vergaderjaar 2009–2010, 32 420, nr. 3, p. 8 & 17.
[139] Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 9 Tweede Nota van Wijziging, p.1.
[140] Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 9 Tweede Nota van Wijziging, p.2 & 3.
[141] Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 9 Tweede Nota van Wijziging, p. 3.
[142] Case C-357/09 PPU, Kadzoev, 30 November 2009, OJ C 24, par. 24, 37, 54 & 69.
[143] Tweede Kamer, vergaderjaar 2010–2011, 32 420, nr. 7 Nota naar Aanleiding van het Verslag, p. 6.
[144] ECHR, Amuur v. France , 25 June 1996, § 41
