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“We Are Here and We Will Fight. Freedom of Movement Is Everybody’s Right!” The Case of Rejected Asylum Seekers in the Netherlands

Say it Loud! Say it clear! Refugees are welcome here! Armed with loudspeakers and a mission, refugees from Somalia, Sudan, Afghanistan and Syria, among other nations, march through The Hague. With banners waving, the group marches past the impressive buildings of the same international organizations that are failing to protect them. Marching to the Dutch Parliament, the refugees, who are rejected asylum-seekers, fill the audience. The tension in the chambers is palpable as parliamentarians take their seats to debate national refugee policy. Of the 150 politicians, only 11 have a multicultural, allochthonous background — an unpromising contrast to their diverse audience. The parliamentary hall nearly reaches capacity as refugees take their seats to face the politicians who will determine their futures.

Among these rejected asylum-seekers are refugees from an activist group called “We Are Here.” We speak with one of the group’s leaders, Chekh El Mouthena Marrakachy, in his room in an occupied building. At 21, El Mouthena, fled the violent civil war between Western Sahara and Morocco for safety in Spain. “If I [stayed], I would have to shoot guns and kill people,” he tells us. “I want peace.” However, in Spain, El Mouthena faces another kind of violence — anti-immigrant hate crimes, and is forced to again leave his home for another country. This time to safety in Sweden.

While in transit to Stockholm, El Mouthena is arrested by Dutch police for crossing the border illegally and is forced to apply for asylum here in the Netherlands. After El Mouthena is fingerprinted and detained, immigration officials do not believe he is from Western Sahara; yet, without official papers, El Mouthena has no way to prove his citizenship. A year after arriving in Spain, El Mouthena learned his mother had passed away and with her, his only way to prove his birth in Western Sahara. Two months after being stopped, El Mouthena’s asylum procedure is rejected and he is again detained. He describes, “At this, of course I am angry, in one word from a judge, your life changes. Positive – your life is open. Negative, well, … They told me to go back to Western Sahara. If my country was free, I wouldn’t be here.” Unable to deport El Mouthena without a passport, he is left on the street to survive. 

 


 

A superficial glance at Dutch refugee policy gives the impression that the government of the Netherlands has covered all of its bases with regard to the safekeeping of asylum seekers and refugees. Under the Dutch Alien Act, those granted refugee status are registered, processed, held for evaluation and then ensured rights outlined in the European Social Charter, which include the right to housing, health, education, employment, legal and social protection, movement of persons and non-discrimination. The Dutch Alien Act also requires that Dutch asylum procedures be in accordance with guidelines established under the EU Refugee Treaty. Asylum applicants that are rejected should be able to safely return to and reside in their home country. If their home country does not accept their return, possibly because they fled this country without a passport and are no longer identifiable as citizens of that country, their safety and their rights should still be upheld by the Dutch government. And they seem to be. The Dutch refugee policy of buitenschuldprocedure, or “without guilt procedure,” grants a temporary stay permit to rejected asylum seekers that have cooperated with asylum and deportation processes but are still unable to return to their home country. With this permit, they have access to shelter, food and work. However, very few, if any, rejected asylum seekers are granted the permit under the procedure, leaving the rest of them to fall through the cracks.

The buitenschuldprocedure not only explicitly denies care to asylum seekers who do not cooperate with Dutch authorities but allows immigration officials to decide what is defined as cooperation. And in practice, this legal standard of cooperation is very difficult to meet. Linda Voortman of the Dutch National Green Party notes that rejected asylum seekers whose home countries do not accept their return are almost never considered to have cooperated with the Dutch government because the government will refuse to believe that they are telling the truth about their status or their missing documents: “people are not believed during their asylum request and after they finish their procedure they are not believed for the [without guilt procedure].” Annemarie Busser, Migration Policy Officer at Amnesty International, corroborates. She argues that rejected asylum seekers are considered to not be cooperating if they do not have papers proving that they are from a particular country, which is the case for many asylum seekers. Others who are scared to return to their home country because of persecution are also considered to not be cooperating because fear of persecution is only considered valid in asylum seekers whose applications are accepted.

Thus, a serious disparity ensues between the face of the law and the practice of the law. Jelle Klaas, human rights lawyer and activist, calls this a “legal fiction.” Written law may give the false sense that the rejected asylum seekers that are banished to the streets of the Netherlands are capable of returning to their home country and have a choice not to be deprived of their basic social, economic and cultural rights. Yet, in reality, as Busser reflects, “these people have nothing. They don’t have contacts for a place to sleep or a job to buy food or shelter.” They are in and out of the streets and detention centers, without country and without rights.  

 


 

While sitting on an old sofa El Mouthena had found abandoned on the street, he told us that his decision to organize was obvious. “People are hungry, and hungry people don’t have any choice. Otherwise you die. Their lives are fucked up. Only if you fight, you get freedom.” Initiating the fight for freedom, the We Are Here movement started on September 4th, 2012 with the simple idea that rejected asylum seekers should be visible and consequently, so too should their problems. By making their struggles visible, they hope to force the Netherlands to take action.

Inspired by the tent camps of the Arab Spring, nearly 90 rejected asylum seekers gathered to start their own tent camp in Amsterdam Osdorp. The group survived through the freezing winter by the charity of churches and neighbors who brought them hot tea and coffee. El Mouthena described, “It’s so cold you don’t want to go out. Like minus ten. Your sleeping bag is your best friend, and when I close my tent I don’t want to open it until morning. Not even to go to the toilet or it’s cold, cold, cold.” The tent camps were so desolate in fact that the City of Amsterdam was afraid that the rejected asylum seekers, now hunger-striking, would die in the cold. Worried he would have to explain their deaths to the media, the Mayor agreed, against the wishes of parliament, to let the refugees stay in an abandoned garage in exchange that the rejected asylum-seekers would again attempt to find permanent citizenship in their home countries.

The We Are Here movement has since occupied a church, a flat, a park, an office and continues to expand. However, after lengthy battles in court, the group now only occupies a market home, a place on the harbor and the original garage. In homage to their struggle, We Are Here has prefixed the names for each residence with the word Vlucht, or “flight” in Dutch: “flight-flat,” “flight-garage,” “flight-church,” etc. El Mouthena proudly walks us through a tour of the Vluchtmarket, an occupied home at the edge of a market. These facilities were previously abandoned and neglected, so We Are Here restored them: fireproofing the homes, building bedrooms, wiring electricity, fixing plumbing and more. However, now that the “flight-flat” has become a usable home, the property owner is suing for the land back.

El Mouthena is fighting for the basic rights to food, shelter and clothing. The right to life. But he is also fighting for much more. “I have no choice. I have to fight for my own life and that of all refugees. We need human rights. Not only food and shelter. We want to start our lives. We are people. We want to work, we want to study, we want to party, we want to start a family. Each of us has dreams." 

 


 

In 2007, Dutch municipalities made an official agreement with national governments not to provide shelter to rejected asylum seekers. Municipalities conceded so long as the national government would enforce policies that prevent rejected asylum seekers from remaining in the Netherlands and on the streets. However, the government failed to deliver these policies. Municipal authorities complained that they were left on their own to deal with the problem on the ground. The municipal officials of some cities, like Utrecht, started to make local changes, which ignored and even blatantly contradicted the orders of national political authorities. Just a year ago, the mayor of Amsterdam, Eberhard van der Laan, the same mayor who sheltered the camp of refugees in Amsterdam Osdorp, stood in front of the parliamentary stage, asking national politicians for policies that could secure for all inhabitants of the Netherlands the basic facilities of bed, bath and bread. Other local politicians did their part by disengaging from the national rhetoric on refugee rights. According to Linda Voortman of the Green National Party, the local PvdA ceased to support the position of the Dutch national PvdA with regards to refugees. But, despite protest and disobedience from below, national politicians have not budged.

That same year that Mayor van der Laan made his statement was the year that hundreds of rejected asylum seekers accomplished the unprecedented and filled the halls of the Dutch parliamentary building, showing lawmakers the faces of those most affected by the national political discourse on refugee rights. After that moment, rejected asylum seekers could not be unseen. Chris Mommers of Amnesty International acknowledged that this was an important “symbolic step” for the rights of rejected asylum seekers: “some of the parliamentarians were also thinking, ‘wait a minute, these people are here illegally, we are here making laws that they should stick with, and they are just sitting here. Why is there no police coming to arrest them?’ and that was really a change in thinking [...] being visible and just being there face-to-face with our lawmakers, that was huge.” Yet the National Parliament remains, to this day, divided on these issues. It is now 2014, and a proposal designed to extend the stay of rejected asylum seekers at the Vluchthuis and Vluchtgarage and another proposal asserting that everybody in the Netherlands should be ensured their basic economic and social rights were knocked down by majority votes. Members of parliament and national political voices like Secretary of State Teeven denounced the experiment at the Vlucht-places as a failure because the rejected asylum seekers did not yet leave the Netherlands and return to their home countries. Representatives like Linda Voortman of the Green Party push back on short-sighted terminations of the Vlucht-places experiment. The Vluchthuis, Vluchthaven, Vluchtmarket, and Vluchtgarage were all initiated to resolve long-term problems; their success should therefore be evaluated using similar, long-term time frames. In her opinion, politicians have the responsibility to “try to create a majority,” inside and outside parliament, that will uphold the protection of human rights and demand an end to strict and short-sighted migration policies.

But many politicians hesitate to garner support for pro-refugee — and pro-human rights — policies. Even when they say that they need support from the people in the country, politicians in parliament are actually “warning for support,” as Annemarie Busser so aptly puts it. They appeal to democratic values by insisting on having complete public support before a policy change can occur. Yet, instead of listening to the opinions of various members of the Dutch public, politicians fan the flames of the anti-immigrant voices among them. National politicians’ appeal (or warning) for public support ignores the local politicians that are begging for change on behalf of their municipalities and ignores the many Dutch asylum seekers that are without access to food, shelter or work. The irony in this situation is outstanding. As much as voices from below scream and shout for change, national politicians manage to muffle them all with a populist rhetoric that falsely claims to listen exclusively to these voices. Linda Voortman of the Green Party reflects: “personally, as a Dutch politician, I am very much embarrassed.”

What is populism nowadays without euroscepticism? Even after the European Committee of Social Rights of the Council of Europe ruled against The Netherlands in a collective complaint initiated by the Conference of European Churches, holding that the Dutch government “failed to fulfil its obligations under the Revised Social Charter to respect the rights of undocumented adults to food, clothing and shelter,” Dutch politicians, again, did not budge. Voortman recalls hearing members of the national parliament react to the holding with nothing more than “they [the Council of Europe European Commission for Social Rights] can say that, but it’s not a final verdict.” Apparently, if it is not a final verdict, or, really, a binding final verdict — whatever that might mean under Dutch application of European Law — no action will come from the Dutch state.  

 


 

Under the European Social Charter established by the Council of Europe, the situation for rejected asylum seekers in the Netherlands is in violation of the socioeconomic rights established by the international community through the European Social Charter. This opinion is corroborated by the European Commission for Social and Economic Rights, the European Court of Human Rights and the European Court of Justice. In the Social Charter, rejected asylum-seekers are guaranteed the right to housing, including the access to “adequate and affordable housing” and the “provision of emergency shelters … for homeless people;” the right to health; the right to “free primary and secondary education;” the right to employment; the right to legal and social protection; the right to movement of persons, including the “simplification of immigration formalities” and the right to non-discrimination. In the Netherlands, rejected asylum-seekers are offered only emergency health care, primary education and limited legal protection. This is written into Dutch law and remains so, even though the Netherlands both signed and ratified the European Social Charter.

This situation is possible because in practice, applying international law within Dutch law is a dynamic process that involves dialogue and acquiescence among national and international institutions. Dutch and European or International refugee law and policy developed together and are intricately linked. Dutch refugee policy can be traced back to the United Nations Convention relating to the Status of Refugees in 1951, whose outlining of the rights of refugees were internalized by the Dutch Alien Act. European Union Regulations have also set the guidelines and minimum standards for Dutch refugee policy — so much so that the Netherlands’ legal system adopted a double legality arrangement, in which several international treaties have direct working within Dutch laws. By direct working, we mean that some international treaties, as long as they are signed and ratified by the Dutch state, are as valid as Dutch national laws for the purpose of legal protection, enforcement and adjudication. And because this is an arrangement created by the Dutch state out of convenience, the Dutch government can decide that direct working only applies to some treaties, not all, even if they have been signed and ratified. The European Convention on Human Rights of the Council of Europe, for example, is unanimously believed to have direct working within Dutch Law. Rejected asylum seekers in the Netherlands are consequently protected in the law from threats to life, liberty and security as well as from torture, slavery and forced labor. They are not, however, offered basic economic, social, and cultural rights because political and legal authorities in Dutch society do not believe that the Social Charter has direct working within Dutch law. Of course, the Dutch national government could simply choose to offer anyone and everyone these rights out of principle, as is already done with Dutch citizens and legal refugees. In their reluctance to do the same for rejected asylum seekers living in the Netherlands, the Dutch national government has demonstrated an inability to see this group of people as humans deserving of protection from the state.

Further hierarchies with regard to international laws have allowed Dutch politicians and judges to pick and choose which international standards to uphold. Nations have a vast margin of appreciation when it comes to setting and enforcing their own refugee policies. As previously stated, Dutch judges can refuse to apply the Social Charter for rulings. Jelle Klaas, Dutch human rights lawyer and activist, asserts that those that deny the Social Charter’s direct working have the domestic law on their side, a law that is based upon “an inclusion of exclusion.” Klaas recognizes that almost all of the political parties subscribe to this interpretation of domestic law and that this makes legal activism quite difficult. It seems that only rulings by the EU Court of Justice can inspire any changes within domestic policies. When in 2009, the Court of Justice decided against the Netherlands’ practices with regards to refugee children, in the court case Defence for Children International v. the Netherlands, the Dutch state secretary implemented immediate changes. The Court of Justice’s rulings are binding upon national courts, so these changes were expected. When similar procedures were held in the form of collective complaints before the EU Commission for Social and Economic Rights, the Dutch state did not consider the holdings binding and did not act upon them. To this day, Dutch authorities refuse to sanction shelter for rejected asylum-seekers because the EU Constitution contains a line, not an article, about the right to shelter. Obviously, hierarchies of compulsion within EU laws and hierarchies of authority within EU institutions are important and exist for many reasons. But absolute reluctance on the part of the Dutch national government to improve the human rights situation for rejected asylum-seekers exacerbates these hierarchies to an unnecessary extent, rendering useless the laws and institutions that are lower in the ladder.  

 


 

Rejected asylum-seekers are called many derogatory things in the Netherlands. Illegal. Beggars. Fortune-hunters. Welfare-abusers. But often one of the most offensive is criminal. As stateless persons, rejected asylum-seekers’ entire being is criminalized and they are subject to repeated detention.

The German police stop El Mouthena on his way to Italy, asking for his identification. Stateless in the Netherlands and without recognized paperwork, El Mouthena still does not have official identification. He is arrested and again told that Western Sahara does not exist, to which he replies, “For me, Germany does not exist.” The German authorities are not amused. He is detained for two months on the charge that rejected asylum seekers are not allowed to travel beyond their country of application. El Mouthena is labeled a criminal for traveling through Germany.

“All of European society can move with freedom. If you have proof that you are from somewhere, you can move. But refugees, no. If you have a fingerprint, they will put you in prison and then send you back there. That means the Netherlands is a prison.” Sitting in German jail, El Mouthena realizes again that the problems for refugees in Europe extend far beyond the problems for refugees in the Netherlands. He explains, “It’s a slavery system. You cannot go, you cannot go back. You are here in the Netherlands but you are not really here. If he needs you, he takes you. If he doesn’t need you, he leaves you there… We want to break this. We want to be like you. To have the freedom to move. To be free.” After a two-month long “Free Mouthena” campaign and nearly 2,500 actions, El Mouthena is freed and deported again back to the Netherlands.  

 


 

Dutch refugee policy is highly influenced by the stance of the European Union. The EU member states’ increased concern with border protection can be traced back to the formation of the Single European Market in 1986 and the implementation of the Schengen Treaty in 1995, which dissolved the internal border control on the EU-territory. Due to the Schengen Treaty, EU citizens can freely cross the borders to other EU-countries without showing their documents. Politicians recognized the economic advantages of opening the internal borders, but were also wary that the EU member states would face an uncontrollable influx of immigrants in case EU border countries would pursue a migration policy that is too liberal. These fears led the EU to guard their borders by organizing extensive border patrols alongside the European coast (implemented by Frontex, the EU agency for external border control), restricting the freedom of movement for new immigrants and implementing the Dublin Convention. 

A first step towards a common asylum policy in the EU was initiated with the Dublin Convention in 1990. The treaty aimed to provide a set of criteria for determining the member state that is responsible for the examination of an asylum application at the European level. In this, the goal of the Dublin Convention was to eliminate the pre-existing ambiguity that had led to “asylum shopping,” which refers to an asylum seeker’s multiple applications in different EU-countries. Based on the assumption that “asylum shopping” is inherently a problem, the Dublin Convention provided the legal basis for establishing which nation state is responsible for examining a particular asylum application. In 2003, the Dublin Regulation was adopted to replace the Dublin Convention, thereby integrating it into the EU law. As of January 2014, the Dublin III Regulation came into force.

The Dublin Regulation states that refugees need to apply for asylum in the first EU country they enter. This implies that if a refugee travels to the Netherlands via Italy, the Dutch government will send him or her back to Italy under the Dublin agreement. Furthermore, each refugee only gets one opportunity to ask for asylum. In case an application is rejected in one country, an asylum seeker does not have the right to ask for protection in another EU member state. As a matter of fact, he or she wouldn’t even be able to travel to another EU member state to ask for asylum, since movement is restricted to the country where the asylum seeker left his or her fingerprint. Given these restrictions for asylum seekers, agreed upon by European member states in the Dublin agreement, it is essential to assess the practical implications of the Dublin Regulations for asylum seekers.

On a personal level, the Dublin Regulation deprives asylum seekers of country choice. Due to the restrictions with regard to asylum application and mobility, refugees are subject to the national asylum policy and conditions of the country they first entered, regardless of language, type of society and whether they have family living in another European country. The Dublin III Regulation of 2014 revised the previous two regulations by establishing a hierarchy of criteria for identifying the member state responsible for the examination of an asylum claim in Europe. The regulation appoints family links as the first criterion to be examined, followed by responsibility, which is assigned on the basis of the state through which the asylum seeker first entered the Dublin territory. By prioritizing the criterion that asylum seekers apply for asylum in the country where they already have family living, attempts were made to improve the system and living situation of asylum seekers. Yet according to the Dutch Refugee Council, the conditions required to be eligible for this criterion are strict. Furthermore, asylum seekers without family links in Europe are unaffected by this change. Indeed, for members of the We Are Here group this revision does not change their situation of being unable to stay yet unable to leave the Netherlands.

The deprivation of country choice under the Dublin system leads to worrisome actions. Due to the extremely poor living conditions for refugees in Italy, the Guardian reports it is common for asylum seekers in Italy to burn their fingers, so that the fingerprint record of their entry into Italy is destroyed. By doing so, the asylum seekers are able to cross borders and ask for protection in other European countries, where living conditions for asylum seekers are better – at least, that is what they hope for.  

 


 

“We Are Here and we will fight. Freedom.. of movement.. is everybody’s right!!” Rejected asylum seekers from the We Are Here group march across the French border, singing and chanting, drums playing, voices hopeful. Members from We Are Here, along with others from a wider Freedom No Frontex campaign, are marching across European borders in protest of the Dublin convention, on their way to Brussels, seat of the European Parliament and council, to demonstrate in front of the annual Council of Europe meeting – one of the groups which determines the practices of the Dublin convention. The police stand on the other side of the border in full riot gear, poised to react.

The rejected asylum seekers, at great personal risk to themselves, are marching to prove that they are here. They are here, and they are human beings too. They are here, and they need to be seen. They are here, and they demand change. In an act of deliberate civil disobedience, members of the We Are Here group march across the border into France, now chanting in French. Oh la la, Oh ley ley. Solidarteé, avec les sans papiers. (Solidarity with those without papers.) The police wait for the devastation that refugees marching into France “will surely bring.” The rejected asylum seekers respond with smiles and music, love and peace, chanting, “We Are Here.” The police stand by, silently, watching the members walk, 500 refugees marching to Brussels.  

 


 

The fact that asylum seekers are deprived of country choice is all the more problematic when considering that the Dublin countries’ national refugee policies differ greatly from each other. The Dublin Regulation could be understood as the harmonizing European Refugee Policy, because it is the only treaty on refugee policy that all 28 members of the European Union as well as Switzerland and Norway have adopted and agreed to participate in. Yet in reality, state governments have a greater margin of discretion in determining national refugee practices than the European Union. These differences between EU member states on a policy level lead to profound implications for asylum seekers, who are subject to a particular member state’s asylum policy.

The asylum policies of EU member states differ with regard to living conditions such as possibilities to work and study, the specifics of the asylum procedure and possibilities for legal assistance and the grounds for asylum detention. With regard to the reception of asylum seekers, the basic human rights to live (bread, bed and bath) are to varying degrees respected by EU member states. Although EU treaties regarding social and economic rights exist, countries’ greater margin of discretion leads to situations in which refugees are left on the streets, excluded from basic needs. As previously mentioned, in 2013 the Conference of European Churches, represented by lawyers Pim Fischer and Jelle Klaas, filed a complaint against the Dutch state, stating that the Dutch government has not met its obligations to respect the rights of undocumented adults to basic needs. The European Committee of Social Rights ruled in favor of the prosecutor and ordered the Netherlands to adopt all possible measures to ensure basic needs for rejected asylum-seekers.

Besides the basic human rights, countries differ with regard to the travel restrictions they impose upon refugees asking for asylum. To illustrate, asylum seekers in Germany can’t leave the region in which they applied for asylum, while asylum seekers subject to Dutch refugee policy are restricted to the country’s borders. Furthermore, member states’ asylum policies are marked by large variations in the asylum procedure, resulting in great differences between countries with regard to time limits, possibilities for appeal, legal assistance and detention during the asylum procedure. In practice, this means that refugees asking for asylum in the Netherlands are automatically detained at the border, while those asking for asylum in countries such as Sweden, France and Croatia are not deprived of this freedom to move about. Moreover, EU member states disagree as to which countries are safe to deport to. Exemplary of the problematic consequences of the differences in deportation countries is the fact that the Netherlands is one of the very few European countries that deports asylum seekers to Somalia: while the vast majority of European countries consider the political situation in Somalia too dangerous to deport people back to, an asylum seeker who is subject to the Dutch asylum policy will be sent back.

Due to the differences between EU member states’ refugee policies, and due to the Dublin Regulation’s restrictions, the lives of asylum seekers entering the European territory are seriously affected by the asylum policies of the country where they first land. According to Annemarie Busser, statistics show that acceptance rates of asylum applications vary greatly among EU countries, even while the asylum cases are comparable in content and quality. This signals that asylum policies in these countries are arbitrary, with respect to each other. She maintains that “as long as the situation in the member states are so different from each other, Dublin isn’t a good policy."

While the Dublin regulation was designed to unify the policies of European member states, in reality it exemplifies the discrepancies between nation states on the EU territory. These discrepancies lead to tensions that manifest in member states correcting or punishing other member states. A remarkable court case issued by a Somali refugee in Germany illustrates the tensions that arise under the Dublin system. In May 2014, a German court refused to send a Somali asylum seeker back to the Netherlands, arguing that he runs the risk of facing “inhumane treatment.” While the German authorities wanted to return the asylum seeker to the Netherlands under the Dublin agreement, a court in Darmstadt refused to do so under the conviction that certain asylum seekers in the Netherlands are not given basic provisions such as food and a place to stay. Politician Linda Voortman notes that the court case in Germany underscored the verdict of the European Commission for Social Rights in 2011 and made it all the more poignant that, from a European perspective, the Netherlands is sliding off. She maintains that the German court case “stressed what we already knew, but it was an unpleasant reality check as to how other European countries look at us.”

The lack of solidarity for border countries of the EU is yet another display of tensions existing among EU member states under the Dublin system. Other European countries have consistently ignored the calls for help that have come from EU southern and border countries like Italy and Greece, which are experiencing higher levels of refugee influx, despite the fact that the appalling living conditions for refugees in Italy and Greece are widely recognized. This situation suggests that for many European countries, including the Netherlands, Dublin is a key tool in a regime of tough border controls that allows for the easy deportation of refugees to Europe’s southern border countries, where they first entered the EU. And it is these border countries, which tend to have minimal welfare provisions available for refugees, that receive the most Dublin returns each year, particularly because so many of the asylum seekers who land in these countries do not wish to stay.

Alessandra Ricci Ascoli, asylum and migration officer at Amnesty International, says member states’ call to reintroduce Schengen every time the influx of migrants entering Europe increases, reflects the tension between EU policy and national sovereignty. She explains that border countries unable to handle the number of asylum applications in times of greater influx of migrants, grant travel documents or do not take the required fingerprints, allowing migrants to travel within the Schengen zone. As a response, non-border countries within the EU then want to reintroduce the idea of border controls within Europe, and in this way invalidate the Schengen treaty. The question of whose responsibility it is to help refugees seeking protection in Europe challenges the European solidarity in the light of the Dublin system. Responding to these challenges, Linda Voortman, member of the Dutch parliament for the Green party, emphasizes that “from a European solidarity perspective, it is very important to work together.” She advocates for the harmonization of refugee policies within the EU, so that asylum requests are equally divided at the European level and each member state is able to provide refugees with basic human needs. 

 


 

We Are Here has made unprecedented and innovative moves for the wellbeing of underprivileged rejected asylum seekers living in the Netherlands and throughout the rest of the European Union. Not only have they given themselves a voice and told people in positions of power that their opinions and rights are valid, but they have amassed resources and support on the municipal and international spheres. Chris Mommers of Amnesty International acknowledges that We Are Here was “miles ahead of” traditional organizations like Amnesty International in terms of getting its message across to others; today, Amnesty merely tries to amplify the organization’s voice. In their recent protests against Dublin II, We Are Here attributed many of the problems faced by stateless persons in Europe to a larger lack of uniformity in European refugee law as well as a lack of solidarity among European Union countries with regards to refugees. This approach is outward-looking and global, almost to a surprising degree – especially for activists that are fighting for basic needs such as food and shelter. In a rich country like the Netherlands, these basic needs are normally fulfilled by municipal governments, but the national government has repeatedly asked municipal governments to forgo this responsibility. We Are Here activists are met with so much resistance when they protest at the national level that they feel forced to plea to another authority: the European Union. 

The Netherlands has gone from a forerunner to a lagger in defense of human rights. Before the rise of populism and anti-immigrant politics of 2001, a group like We Are Here might have kept their protests at the local and national level. After 2001, the European Union and its several human rights institutions consistently find the Netherlands guilty of human rights abuses against refugees and rejected asylum seekers. Dutch national authorities, in turn, refuse to concede to the accusations. They do not enact any changes without final verdicts from the European Court of Justice and have reconsidered making changes only after desperate complaints from mayors and other municipal officials. Perhaps these complaints might some day lead to widespread action but, today, the European Union is more progressive and responsive on this front than the Netherlands and, as a consequence, might be more receptive to the mission of We Are Here, even when only few EU institutions can bind the Netherlands to act. For instance, even as We Are Here has amassed the support of some members of the European Parliament, the EU Parliament can only pressure other politicians and other institutions into making change — it cannot make binding changes on the subject of refugees. The EU Court of Justice, on the other hand, can. But it has not yet mounted a case against the Netherlands for this issue.

We Are Here asks the European Union to repeal Dublin II. In our opinion, this plea is visionary, even if it can be impractical. We also believe that European countries can pressure each other to improve the situation of refugees in Europe; they could do so by eliminating the Dublin II regulation. If Dublin II was created in order to regulate and control refugee movement and alleviate the refugee problem in Europe, it has not accomplished its purpose. By forcing asylum seekers to stay in the same country that took their fingerprints, member states in the south and at the borders of the European Union have had to bear the greatest burden. EU member states should allow asylum seekers to move across European borders and apply for asylum in the countries of their choosing. Migrants might still flock to countries with more opportunities for refugees, of course. In this case, the European Union could nudge member states towards a harmonization in refugee policies and could facilitate the monitoring and regulation of refugee numbers across member states; by regulation of numbers, we mean the setting of a fair and even threshold of refugees that each country should be asked to bear. The EU might then require that undertaxed member states take on more refugees so that there is not a crisis or overflow in any particular country. They could also regulate the harmonization of refugee policies so that this harmonization is not to the bottom, perhaps by ensuring that national policies align with the international standards of not just civil and political human rights but also economic, social and cultural human rights. Accomplishing all of this requires a greater level of consciousness and solidarity on the part of EU member states — and this might be difficult, especially when the most powerful EU states could benefit the least from these changes — but solidarity of this quality can help avert crises and assist in upholding human rights throughout the European continent.  

 


 

When El Mouthena was younger, he wanted to be an electrician. In fact, he almost blew up his house experimenting with the wiring as a child. Yet, without the right to work, life has pushed El Mouthena to follow other pursuits. El Mouthena ends our interview describing his path to activism, “I didn’t want to be an activist even in the beginning, but I didn’t have a choice. Life pushed me to be an activist. I’d like to help all people get to freedom because these people, [the rejected asylum seekers], are good people. They used to be in university and now, if they get papers, they can do a lot for society.” But El Mouthena voice turns somber as he concludes, “For myself, I don’t have any future. I just helped when our group decided that I should be a leader, but for myself I don’t have a dream – except maybe peace for the whole world. A friend said to me, you are an ambassador of human rights. Now I just put that on my Facebook.” An ambassador of human rights with a dream of world peace, El Mouthena still wires the electricity for all of the flight-houses, an electrician at heart. 

References

Interviews

Chekh El Mouthena Marrakachy (Activist, We Are Here Group)

Jelle Klaas (Human rights Lawyer, Fischer Advocaten)

Linda Voortman (politician, Green Party NL)

Annemarie Busser (Migration Policy Officer, Amnesty International)

Christian Mommers (Senior Political Affairs Officer, Amnesty International)

Alessandra Ricci (asylum and migration officer, Amnesty International)

Legislation and Court Cases

Case of M.S.S. v Belgium and Greece. European Court of Human Rights, (2011).

Conference of European Churches v The Netherlands. Collective Complaint before the Council of Europe, (2013).

Convention and Protocol Relating to the Status of Refugees (1951, 1967). Read here.

Defence for Children International (DCI) v The Netherlands. Council of Europe: European Committee of Social Rights, (2009).

Netherlands Aliens Act (2000). Read here.

The European Social Charter (1996). Read here.

UNHCR Manual on Refugee Protection and the European Convention on Human Rights. Read here.

Other Sources

European Commission’s section on “Employment and Human Rights.” Read here.

Asylumineurope.org 

“Utrecht offers bed, bath and bread emergency shelter,” de Volkskrant (2001).

“Duits vonnis: asielzoeker loopt risico in Nederland”, NRC Handelsblad (2014).

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Netherlands Netherlands 2014

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