Return - IOM Publications - International Organization for Migration

Return Migration: Policies and Practices
ends. Where a person has never been lawfully resident in the Netherlands, e.g. following illegal
entry, this legal obligation arises from the moment he/she enters the Netherlands illegally.
In addition, under the new Law, residence permits are awarded only provisionally. There are two
simultaneous asylum categories – temporary status and permanent status. A permit for a fixed
period is issued first and application for a permit of indefinite period can be made after three
years have elapsed. Hence, the government can revoke the permit if it decides that conditions in
the refugee’s home country have improved sufficiently to allow repatriation.
Despite the legal obligation to leave the Netherlands once a person has exhausted all channels of
asylum, the actual departure cannot be guaranteed simply by means of law. The Ministry of
Justice argues that a blend of incentives and restrictions is necessary to ensure effective repatriation,
in accordance with the “carrot and stick” principle applied in most EU Member States. The
government’s aim is to discourage unwarranted applications for asylum and to encourage those
who are in the country without the right of residence to leave.
All these provisions will be applied more strictly under legislative revisions in 2004, including
increased inspections along the border and stepped-up arrest and detention of foreigners already
inside the country and in irregular circumstances. The latter will involve closer cooperation of
police forces, more regular checking of foreigners, and detention and expedited expulsion of
those with no legal right to remain. There will also be greater scrutiny and possibly rejection of
asylum seekers without proper documents.
Ordered and Forced Return
Dutch Law distinguishes between ordered (de jure) and forced (de facto) return. The former
involves the issuance of an official order authorizing expulsion and banning return to the Netherlands,
while the latter refers to the actual enforcement of the expulsion order. Nevertheless forced
return does not automatically follow ordered return because of the voluntariness of the obligation
to leave. Based on research conducted in 1997, it was discovered for instance, that only
22 per cent of the 19,000 unsuccessful asylum applicants who requested to return to their countries
of origin, actually did so through government enforcement.
Three-quarters of these were forcibly removed, while the remaining quarter were registered as
having left the country at an external border. The remaining 15,000 were not expelled, and it is
estimated that a significant proportion of such persons continue to live in the Netherlands without
any legal status. 7 Consequently, forced expulsions are implemented more frequently and
serve as an effective deterrent to illegal migrants, if the decline in asylum statistics is to be taken
into account.
Under Dutch law, illegal residence is not a punishable offence. However, with the Aliens Law
2000, illegal migrants who do not obey the order to leave and are repeatedly caught can be
classified persona non grata and face a sentence of up to six months imprisonment, followed by
the possibility of an additional detention period. 8
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