Reviewing the Legality of the Cabinet's Plans on Migration: The need for a New Platform of Investigation

Migration has been a leitmotif of the past year at the European and national level. In May 2024, after a cumbersome negotiation process, the third reform of the Common European Asylum System (CEAS) was adopted by the European Parliament and the Council and will be applicable as of June 2026. Soon after this adoption, at the national level, the new Dutch Cabinet sent a formal letter to the European Commission expressing its intention to request an opt-out from the CEAS. This is not the only problematic aspect of the Cabinet’s plans in the field of migration, because the Dutch Cabinet announced various other measures from asylum to regular migration to incoming students that have raised several questions on the possible frictions with the rule of law and the Dutch obligations under international and European Law. These frictions were clearly illustrated and tested against the rule of law by the Report issued by the Netherlands Bar(NOvA) under the direction of Elaine Mak, Professor of Jurisprudence at Utrecht Law School.

Both the Report and the specific challenges raised by the Cabinet’s plan were discussed on 5 December in a research event organised within the Montaigne Centre on the Rule of Law and the Administration of Justice. During this event, Elaine Mak outlined the rule of law methodology applied by the Committee that drafted the Report and signaled the many proposals in different policy areas that create friction from the perspective of the rule of law. Unsurprisingly, many of these frictions regard the plans for asylum and migration, as explained by various researchers. In particular, drawing from his recent blogpost, Salvo Nicolosi explained that in the field of asylum, both procedural and more structural proposals are not only legally untenable but also politically ineffective. This is illustrated by the proposal to suspend asylum decision-making (asielbeslisstop). In this regard, tensions could arise with EU law obligations. First, under the Reception Directive 2013/33/EU, as interpreted by the Court of Justice (C-179/11), a Member State must grant minimum conditions while the applicant awaits a decision. Second, the Procedures Directive mandates registration within six working days and decisions within six months. Third, in MSS v Belgium and Greece, the European Court of Human Rights required authorities to avoid delays in asylum claims. If the priority for the government is to ‘deport as much as possible’ people without residence permits, it is not clear what the advantage of suspending the asylum process will be. This could only happen after a fair and effective asylum procedure that could result in a denial of protection.

Viola Bex-Reimert discussed the proposals on reception conditions. She argued that proposals such as repealing the ‘Spreidingswet’ or amending the ‘Huisvestingswet’ to forbid prioritising the housing of asylum seekers are not in accordance with the new Reception Conditions Directive 2024/1364 and more specifically with the contingency plans Member States need to have to assure adequate housing for asylum seekers. Repealing the Spreidingswet and amending the Huisvestingswet is also counterproductive (see also her en Giel Heeringa’s recent blogpost on the announced use of the emergency clause in the Dutch Aliens Act). Additionally, proposals such as downsizing material reception conditions to the bare minimum and containing asylum seekers whose application is unfounded contrast with dignified standards of treatment and basic human rights.

Students incoming mobility was discussed by Lavinia Kortese and Hanneke van Eijken. Measures in the coalition agreement related to student migration are primarily aimed at diminishing the influx of international students (through a numerus fixus and managing scholarships and study financing) as well as combatting the “Englishization” of Dutch higher education. Whereas these types of measures can be seen as restricting freedom of movement under EU law, it will depend on the justification put forward by the Dutch government whether or not such restrictions can be accepted. Previous case law shows that, while purely economic justifications have not been accepted, other interests such as protecting language and culture have been accepted to justify restrictions previously.  

Finally, with regard to labour migration, Paul Minderhoud explained that in contrast to the other migration issues the Report by NoVA on the Legality of the Cabinet’s Plans on Migration did contain any proposals which did not comply with the rule of law. This was caused by the fact that labour migration was barely addressed in the government program. Paul stressed this was very worrisome because labour migration is by far the largest, most complex and problematic type of migration at this moment, but not recognised as such by the Cabinet. Paul concluded by stressing that the government should recognize the urgent situation and should be more ambitious on regulation labour migration.

These tensions urge further research in migration law, an opportunity that will materialize with the establishment within the Law School of the new research platform on Migration Law (MiLa) from the 1 January 2025, which is embedded in the Montaigne Centre for Rule of Law and Administration of Justice. This platform will promote the advancement of research on laws and regulations relating to migrants and actors and institutions that influence the dynamics of migration and it aspires to become a centre of excellence for the study of migration law.