Text: Tesseltje de Lange and Ricky van Oers. This article was first published on the website Sociale Vraagstukken. Photo: Julie Ricard via Unsplash
Tuesday 20 June was World Refugee Day. By definition, this was a day to collectively reflect on the Dutch interests, values, rights and responsibilities that are involved in welcoming refugees. Throughout the centuries, people have travelled to the Netherlands to escape violence and oppression, climate change and food shortages. Someday it may be the Dutch themselves who find themselves fleeing, from water, for example.
When we think about welcoming people, it requires us to think about how we ourselves would like to be welcomed. In the debate on the issue of refugee reception, we recognise three perspectives: that of the merchant, the priest, and the judiciary.
The merchant
In April 2023, over 18,000 applications were submitted by people who were seeking shelter and had been waiting for a decision longer than the statutory six-month period. Although they are allowed to work, work permits had only been requested for four percent of the people in this group. This is despite the fact that our country is facing a massive labour shortage.
The merchant in each one of us wonders why more asylum seekers aren’t working. If you are wondering if it’s because of their laziness, the answer is ‘No’. They are not working because, in actual fact, their right to work is primarily negated by legal, administrative and practical obstacles. An employer is required to complete a complicated permit procedure, consent of the Immigration and Naturalisation Service (IND) and the Employee Insurance Agency (UWV) is requires, and the municipal authority has to issue a Citizen Service Number (BSN); and just as this procedure is drawing to a close, the soon-te-be employee will be moved to another asylum seekers’ centre.
Back in 2017, research into the trajectory From the Asylum Seekers’ Centre to Paid Employment [Van azc naar een baan] revealed that it is not the refugees themselves but rather the Dutch system that is to blame for the fact that they aren’t working. A legislative obstruction that is regularly discussed is that asylum seekers are only allowed to work for 24 weeks a year, which subsequently means that they can do little more than bide their time for the rest of the year.
On several occasions it has been noted how absurd it is that these people are not allowed to work (see, for example: Merel van Vroonhoven in De Volkskrant). Refugee organisations, employment agencies, the Association of Netherlands Municipalities (VNG), the Central Agency for the Reception of Asylum Seekers (COA), employers, employers’ organisations from the Dutch Federation of Small and Medium-Sized Enterprises, the Confederation of Netherlands Industry and Employers (VNO-NCW) and the General Employers’ Association (AWVN) have all spoken out against restrictions on the right to work. However, it is primarily the People’s Party for Freedom and Democracy (VVD), which is also the merchants’ party, that is curbing these people’s right to work.
Contrary to what this party claims, it is not the case that an asylum seeker who was working while they were waiting for their asylum application to be processed would subsequently earn residency rights. Nor would they be entitled to unemployment benefits. Yet when this issue was raised during the parliamentary debate on Monday 26 June, this argument was once again used by the VVD to argue against the expansion of work opportunities for asylum seekers.
The now-outgoing State Secretary Van der Burg subsequently indicated that he ‘certainly would not rule out the possibility’ of the court eventually granting a residence permit to any asylum seeker whose application was rejected because they had worked. This means that the State Secretary’s reasoning is diametrically opposed to the conclusions that were reached in research reports that were requested by the government.
The priest
The ability to work contributes to human dignity. This is not actually the case in current reception centres: thousands of asylum seekers are sitting around doing nothing in overcrowded (crisis) reception locations. Long periods of inactivity are in fact the preceding chapter in a jobless life that involves dependency on welfare and participation in revitalisation programmes.
By contrast, the opportunity to work would allow asylum seekers to maintain their level of knowledge and skills, acquire language skills and build their own network. All of these things would prove beneficial for their integration into society once they have obtained their residence status. Unfortunately, the priest who advocates human dignity will soon find himself at loggerheads with the government, which first wants to ‘gain control’ of migration before considering the option of increasing work opportunities for asylum seekers. This was reiterated by State Secretary Van den Burg during the aforementioned parliamentary debate on this issue. He claimed that ‘control’ could only be achieved when crisis emergency accommodation in particular would no longer be needed.
In this way, the crisis surrounding the reception of asylum seekers is passed on to the asylum seekers who have spent ages in the reception centre while they were awaiting a decision on their application.
The judiciary
If the government feels no humanitarian duty, could there possibly be a legal responsibility? Under the European Reception Conditions Directive, the Netherlands is required to grant asylum seekers effective access to the job market. The court in The Hague recently ruled that the 24-week requirement violates this obligation. The Minister of Social Affairs and Employment appealed this judgment.
She was obviously perfectly entitled to do this. But it should come as no surprise that this move generated a storm of outrage. It is now up to the highest administrative court, the Administrative Jurisdiction Division of the Council of State, to make a decision after it has heard the case on 7 September.
A judgment will not necessarily bode well for either employers or their employees who come from refugee backgrounds. However, if the Administrative Jurisdiction Division does not share the court of first instance’s view, it will have to provide a proper explanation of its interpretation of what we consider to be unambiguous European regulations. Or it will need to seek an explanation from the Court of Justice of the European Union. In this case, it could take several years before there is any certainty about something that could help so many employers to solve their staff shortage, and give so many people who are seeking shelter the chance to do something meaningful while they are waiting for their asylum applications to be processed.
From the perspective of both the merchant and the priest, it is clear that asylum seekers should be given the opportunity to work more. Much like the court in The Hague, we believe that the current Dutch regulations are in conflict with European law. We will have to wait and see how the highest court in the Netherlands decides to rule on this issue.
Tesseltje de Lange is Professor of European Migration Law. Ricky van Oers is Assistant Professor of Sociology of Law and Migration Law. They are both associated with the Centre for Migration Law at Radboud University in Nijmegen.