Thursday, October 05, 2006

Developments in the case of Hui and his mother


The mother (and son) contested their detention since 19 September, and the court gave judgment on 29 September against their favour.

The court rejected the appeal of the mother for asylum, arguing it is “unfounded” [ongegrond]. The detention of the mother Xiu Chen is not in conflict with Dutch law, and neither is it in conflict with international obligations of the Netherlands. The court reminded Chen that she belongs to a group of asylum seekers who have no right of stay in the Netherlands, period. She has long since been ‘’processed out’ [uitgeprocedeerde] of the country, and must be repatriated to the country of origin. In such a situation, the Minister of Immigration and Integration has the discretionary power under existing immigration/asylum laws to do whatever is necessary to ensure the deportation of the asylum seeker is ultimately realised. And “detention” [bewaring] is one of these extreme measures that can be laid upon the person in question. That the son—on whom the detention order was not placed, but may be affected as a result of the detention—stays with the mother does not change the reality or have any bearing on her (il)legal status in the Netherlands.

Appeal to the rights guaranteed under the Convention on the Rights of Children are rejected on the basis of previous jurisprudence in the Supreme Court. A case in 2005 held that without further incorporation of the Convention’s rights, those rights cannot be invoked before the court (para. 2.5). Further, a case in 2003 held that even if those rights were to be invoked before a national court, Ms. Chen would have no right to do so since Dutch law does not grant those rights to asylum seekers who have been denied a right to stay. Ms Chen was already told in various previous conversations with immigration officers that her non-compliance with deportation efforts would eventually lead to her detention. The court said that she could have raised the issue of consequences for her child in the event of detention before hand, which she did not do. Again, in reference to previous case law of the Supreme Court, if a said applicant insists on keeping the underage child with her in detention, it cannot be argued that the interest of the child was not considered satisfactorily before the court.

The court does agree that the education and recreation facilities in the “detention centre” [detentiecentrum: read ‘prison’] are “limited”, and that the long term stay of children in such centres is “impermissible” [ontoelaatbaar]. The court did not pronounce exactly how long the detention of a child may last, and only skirted the issue by saying that it depends on the “age and needs of the child”. In this specific case, with regards to the short period of detention, there is no ground to believe that the interests of the son were unsatisfactorily taken into account.

Ms Chen cannot appeal to Article 5 (right to liberty and security of person) of the European Convention on Human Rights (ECHR), because under subsection (f), this right can be impinged upon under “lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition” (para. 2.6), which is the case at hand. Similarly, appeal cannot be made to Article 8 (right to private and family life) of the ECHR, because the detention of the applicant is justified under subsection (2), “in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country […]”.


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Closely related,
a motion in parliament to outrightly ban the imprisonment of children was rejected two days ago. Instead, a motion to make every effort to ensure that children in detention have access to education was adopted.


1 comment:

Michael Bar said...

I am not sure that I fully understand all the paragraphs and subsections, but the idea is that they have nowhere to go. Isn’t there a country in this world that can give them asylum? I am looking at all the pictures of the sky that you have in your blog, and wondering, is there someone watching this? Sometimes the sky is red, and looks angry, and I can see why.

Michael.