Dutch right: shed the EU straitjacket on immigration

There is a lot of political debate in the Netherlands about immigration, but European agreements leave little room for manoeuvre. Stricter policy would mean retreating from Europe.

For years, the right-wing liberal VVD party has wanted stricter immigration rules in the Netherlands. But members of parliament Paul de Krom and Stef Blok have come up against a wall of European law. If European rules are the problem, they have now decided, these rules will have to be changed. The VVD leaders complain that European law has been deemed inviolable and resistance to European treaties is seen as sacrilege.

"Piet Hein Donner and Ernst Hirsch Ballin talk about European law as if it's the Ten Commandments," VVD campaign leader Blok said of the current Christian Democrat ministers of social affairs and justice.

"If ministers can adopt treaties," De Krom said, "then they can also change them." And if Europe will not change the rules, he added, then the Netherlands should pull out of European regulations through a so-called opt-out.

Forced to the background

Immigration, the main political point of contention in the 21st century, has played a remarkably modest role in the Dutch elections until now. The economic crisis and budget cuts have forced the subject to the background in the campaign for the June 9 election. But, for the VVD, it remains important. They have been trying for years to curb immigration by the poor and uneducated but are hampered by Europe. The Netherlands has accepted international agreements that drastically limit the freedom of national politicians.

The right-wing liberals are not alone. Geert Wilders' populist PVV has proposals that to go even further in limiting immigration, many of which are in conflict with European law. The Christian Democrats, Labour and Socialist parties also have proposals in their election manifestos that are at odds with European agreements, experts say.

Numbers In 2009, 147,000 people migrated to the Netherlands, most of them from other EU countries (90,000 in 2008). There were 16,000 asylum requests and 29,000 requests for family reunion. After a drop in numbers in the first half of the decade, the number of immigrants has been rising since 2006.

"We should form coalitions with countries in north-west Europe and southern countries like Spain and Greece, which have great problems with illegal immigration, and take on the European rules together," De Krom said. "The new Dutch government should tackle this from day one. If it doesn't work, then we'll advocate an opt-out."

This may sound logical, but is it possible?

Some European agreements are revisited from time to time. A new Dutch government can immediately negotiate a revision of the European guidelines on family reunification. Other international agreements, such as fundamental rights, are set in concrete. And a country can only stipulate an opt-out during discussions on new rules. The Lisbon Treaty, for example, doesn't offer a get-out. An opt-out for the Netherlands is only possible if the Treaty is renegotiated, with the ratification of all 27 EU nations.

Unforeseen by the lawmakers

The right-wing liberals want to take on decisions enshrined in a handful of UN treaties, a too-liberal interpretation of the European Convention on Human Rights (ECHR), and EU rules and treaties. They are lined up against a library of law books and dozens of judges who interpret the rules.

"We think basic rights are important and we're not against the treaties," said De Krom. "But we are against the fact that treaties are interpreted in a way unforeseen by the lawmakers. In these cases, laws need repairing and treaties revising."

"Dutch immigration law is increasingly determined by international treaties," said Pieter Boeles, professor emeritus of immigration law in Leiden. International treaties have a big influence on the most controversial immigrant groups: asylum seekers and marriage immigrants.

Many of the rules that now annoy the VVD were drafted without any thought about immigration. Some of them date from before the mass movements of people in Europe, others from a time when immigration was not seen as a problem. But there have also been recent EU rules.

European courts involved

The European Convention on Human Rights was introduced in 1950, when immigration was not an issue. The convention contains classic rights such as a ban on slavery and the right to respect for family life. It only became complicated when the European Court of Human Rights in Strasbourg decided that this treaty should not only apply to the citizens of the EU but also to everyone living there. Boeles: "You could no longer send someone back to a dangerous country, nor someone who has a family here."

The law on family reunion in the Netherlands, however, existed before the Strasbourg-court got involved. Originally, the Netherlands assumed that foreign workers who came in the 1950s and 1960s would be here temporarily and could live without a family. When that proved unrealistic, the Netherlands drew up its own rules on family reunification.

According to Boeles, international law played little role in Dutch immigration rules until the end of the 1980s. After that, the jurisprudence of the court in Strasbourg began to be felt. Meanwhile, over the years, the European Court of Justice in Luxembourg has widely extended the right to the free movement of people. It now extends to family members without EU nationality. This is why people from non-EU countries have the right to be with their relatives in the EU.

The 1997 Amsterdam Treaty, which extended the reach of the EU into the field of immigration, the replacement of national reunification laws with European law in 2003, and the incorporation of the ECHR and other international treaties in the powerful body of European law gave migrant rights a strong anchor. "It's remarkable how little people understand the revolutionary changes that took place shortly after the millennium," Boeles said. "Part of the European electorate doesn't want this at all and feels caught in a straitjacket."

The question is whether the Netherlands is strong enough to cast off this straitjacket. "If it can get a majority during the revision of a guideline it can force a more restrictive policy ,” said Boeles. “And the court is not insensitive to the mood of society. But if you really want to get out, then you'll have to jettison rather a lot of your own values. Even if you reject all the treaties, you're still not allowed to discriminate. You'd become a sort of Albania, small and isolated."