Netherlands in violation of torture

The Netherlands was chastised by the European Court of Human Rights in Strasbourg today for violating the prohibition on torture. The Court decided in the case of Somali asylum seeker Salah Sheekh who was threatened to be (wrongly) deported from the Netherlands, despite the fact that the circumstances in his home country threatened to expose the asylum seeker to instances of “to torture or other cruel or degrading treatment or punishment” (Article 3 of the European Convention on Human Rights).

The now 20-year-old Sheekh fled his country in 2003, after a series of violent and traumatic incidents, including rape, pillage and murder by militia members targeting members of his minority clan, which resulted in severe traumas for his family members and the death of his father. He arrived in the Netherlands, and:

18. Upon his arrival, the applicant indicated that he wished to apply for asylum. He was refused entry into the Netherlands and deprived of his liberty. He was taken to the asylum application centre (aanmeldcentrum, “AC”) at Schiphol to lodge his request for asylum (verblijfsvergunning asiel voor bepaalde tijd) on 13 May 2003. […]

His application for asylum was rejected by the (now ex-) Minister for Immigration and Integration (Verdonk):

25. By a decision of 25 June 2003, the Minister refused the applicant's asylum request. The fact that the applicant had failed to submit documents establishing his identity, nationality and itinerary was held to affect the sincerity of his account and to detract from its credibility. […]

26. The Minister further considered that the applicant had made unreliable statements as to his date of birth and his age. Although he had submitted that he was 17 years of age, an examination had shown that he was at least 20. This was also deemed seriously to affect the credibility of his account.

The application more lenient application of asylum based on trauma experienced by the applicant was also rejected, because the Minister did not believe Sheekh was not traumatised enough:

30. The Minister concluded that it had not appeared that there existed a real risk of the applicant being subjected to treatment in breach of Article 3 of the Convention upon his return to Somalia. Moreover, the applicant was not eligible for a residence permit within the framework of the leniency policy for traumatised asylum seekers (traumatabeleid), given that the alleged murder of his brother had occurred as long ago as March/April 2002 and the alleged rape of his sister as long ago as 1998 and June/July 2002.

A series of appeals to the rejection of asylum was lodged by Sheekh, but all were rejected, after which the Minister issued him with an EU Travel Document so that he can be deported back to his country.

The decision was based on a series of Country Reports compiled by the Dutch Ministry of Foreign Affairs, which deemed large parts of Somalia “relatively safe”, despite reports and complaints from the UN, Médecins sans Frontières, Amnesty International and refugee organisations to the contrary:

100. In its Position Paper on the Return of Rejected Asylum-Seekers to Somalia of January 2004, the United Nations High Commissioner for Refugees (“UNHCR”) stated, inter alia, the following:

“Throughout the country, human rights violations remain endemic. These include murder, looting and destruction of property, use of child soldiers, kidnapping, discrimination of minorities, torture, unlawful arrest and detention, and denial of due process by local authorities. ...

The challenges faced by both Somaliland and Puntland in integrating Somali refugees back home remain a critical humanitarian, recovery and development concern. In both areas, tens of thousands of returnees from exile continue to live in slums on the outskirts of towns where they are often indistinguishable from other vulnerable groups, and as such face many of the same problems accessing basic social services and becoming self-reliant.

[…]

This is true also in Somaliland and Puntland. They already host some 60,000 and 31,000 IDPs [Internally Displaced Persons, addition mine] respectively, which by far exceeds their absorption capacity. In the absence of clan protection and support, which means weak or negligible social networks, a Somali originating from another area would be likely to join the many other underprivileged IDPs who suffer from lack of protection, limited access to education and health services, vulnerability to sexual exploitation and abuse and labour exploitation, eviction, destruction and confiscation of assets. Depending on the goodwill of the local community and what meagre humanitarian assistance may be available, persons perceived as 'outsiders' may be forced to live in a state of chronic humanitarian need and lack of respect for their rights. Specifically, in Somaliland, a self-proclaimed independent state, those not originating from this area (non-Somalilanders) would be considered as foreigners, and face significant acceptance and integration problems, particularly taking into account the extremely difficult socio-economic situation of those native to the territory. ...

Thus as pointed out by the UN organisation responsible for refugees, in large areas of Somalia, any one who is not a member of the same clan / ethnic group (like Sheekh who is of the minority Ashraf group) will be subject to prejudice, hardship and even physical violence. And especially in a ‘state’ like Somalia where the government has collapsed and lost all functions of guaranteeing maintaining peace and security, people and property are basically protected by the good-will and recognition of people of the same ethnic / clan background.

108. In this report, published on 17 March 2005, Amnesty International […] states as follows:

“The minority groups, who have no armed militias, have been extremely vulnerable during the period of state collapse and absence of a justice system and rule of law to killing, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and clan members. Such incidents are still commonly reported and are being documented by local human rights NGOs.”

The Court, weighed the argument by Sheekh that he would be subject to dangers and threats to life and property if deported against the argument of the Dutch government that there is no such danger in the “relatively safe” areas. In construing the nature of the obligation enshrined in the European Convention on Human Rights, Contracting Parties (of which the Netherlands is one):

135. [have] the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. […] However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies and prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct, however undesirable or dangerous. The expulsion of an alien may give rise to an issue under this provision, and hence engage the responsibility of the expelling State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country […] [emphasis mine]

139 […] Nevertheless, there is a marked difference between the position of, on the one hand, individuals who originate from those areas and have clan and/or family links there and, on the other hand, individuals who hail from elsewhere in Somalia and do not have such links in Somaliland or Puntland. […] As far as the second group is concerned, however, the Court is not persuaded that the relevance of clan protection in the “relatively safe” areas has diminished to the extent as suggested by the Government. It notes in this respect that as regards the expulsion of a Somali national to a part of the country from where he or she does not originate, UNHCR is of the opinion that “considerations based on the prevailing clan system are of crucial importance” (see paragraphs 100 and 102 above). Clan affiliation has further been described as the most important common element of personal security across all of Somalia (see paragraph 105 above), and thus not merely in the “relatively unsafe” areas.

146. The Court considers that the treatment to which the applicant claimed he had been subjected prior to his leaving Somalia can be classified as inhuman within the meaning of Article 3: members of a clan beat, kicked, robbed, intimidated and harassed him on many occasions and made him carry out forced labour. Members of the same clan also killed his father and raped his sister (see paragraphs 7-9 and 12-13 above). The Court notes that the particular – and continuing – vulnerability to this kind of human rights abuses of members of minorities like the Ashraf has been well-documented (see, for instance, paragraphs 103-104 above).

This is a special case, because usually before going to the Human Rights Court in Strasbourg, the applicant must exhaust all local remedies, meaning that he must have gone through all the appeal courts right up to the highest court (in the case of the Netherlands, the Administrative Division of the Council of State [Afdeling Bestuursrechtspraak Raad van State]). The Court however said that in the light of previous cases dealing with asylum, “in practice a further appeal would have stood virtually no prospect of success”. So Sheekh could bbypass this procedural requirement of exhaustion of local remedies (paras. 119-127)

Sheekh has been given a residence permit and is permitted to stay in the Netherlands.

Minister dismissed!

(Minister not-very-happy-looking Verdonk: NOS, 'Acht uur journal')

There’s only so much you can resist. She survived three votes of no-confidence. She survived three cabinet downfalls, of which one was directly caused by her tough attitudes of doing and speaking. But today marked the downfall of Minister for Immigration and Integration, Rita Verdonk.

Dubbed ‘Iron Rita’ because of her hard-line approach to maintaining rules, the Parliament voted in the early hours of today to against her performance and policies. Since the adoption of the general amnesty for asylum seekers two weeks ago, (now ex-) Minister Verdonk has continually refused to comply with the wish of Parliament, and insists that she will continue (and did continue) to deport asylum seekers who may be in the category of those with amnesty.

In heated debates lasting almost whole day yesterday, Verdonk refused to concede to the wishes of the parliamentarian majority. Close to 1am ,the group of left-wing parties, with the support of the Christian Union (CU) and Party for Animals (PvdD) voted to oust her out of office. As one parliamentarian said, Minister Verdonk’s refusal to even cease with the deportation of asylum seekers for just 24 hours in order to allow the Parliament to debate on the matter shows how inhumane and inflexible her policies are. Who knows how many people have been wronged by her policies as a result in the past few years. But now she has to go.

The fact that the cabinet is out-going anyways means that her dismissal doesn’t really mean much. But to many, especially the left opposition, her final departure is a welcome success after years of struggle to unseat her.

Actually, her departure comes at an awkward time. It's caused a big stir and left the country in a state of crisis. The bigger political parties are still trying hard to overcome disagreements in forming a coalition government. This is not helped by the fact that the biggest party, Christian Democrats (CDA), has for the past two weeks stood staunchly behind Minister Verdonk—much to the ire of the two left-wing parties (Labour (PvdA) and Socialist Party (SP)), which support the general amnesty motion. These two latter parties are also the most likely candidates of negotiation for the future cabinet formation.

(Minister Verdonk and staunch-supporter Christian Democrat Prime Minister Balkenende: NOS, 'Acht uur journaal')

The vote of no-confidence against Minister Verdonk, some fear, may trigger her Liberal Party (VVD) to pull out of the out-going cabinet, which might effectively leave the cabinet having to rule with only a dozen seats in parliament. In short, a limping government until the parties come to an agreement who gets to govern next. And that could be a long time due to the intense disagreements about this very amnesty issue.

The mess one person, her ego and stauncheadedness, can cause....

--

For an in depth coverage, see de Volkskrant.

Cabinet against amnesty....

Almost a week after the adoption of the general amnesty for asylum seekers who came to the Netherlands before 2001, the Cabinet has made it clear time and time again that it does not intend to implement the motion. The motion was to grant “all asylum seekers, except for war criminals and persons prosecuted for serious offences, who filed their first [asylum] request before April 1^st, 2001 and have not yet left the Netherlands.”

In a letter to Parliament by decommissioned Minister for Immigration (Verdonk), it was argued that the motion is “not executable and has unwanted effects” [niet uitvoerbaar is en ongewenste effecten heeft]. One argument was that because of the unstable constitutional situation we find ourselves after the elections two weeks ago, the need to form a new government “demands mutual care and restraint from the [decommissioned] Cabinet and [Parliament]”.

In short, thus, any motion passed should not be recognised as having binding effect.

Now, knowing Dutch politics, it will take months and sometimes up to half a year for a new cabinet to be formed, because of all the coalition and consensus-building agreements that need to be negotiated and signed between the majority parties. Especially with the results of the past elections, with big division of the votes between parties on the left and right, it will even be more difficult to build an agreeable and workable coalition. If the Minister and the decommissioned Cabinet claims are correct, then that effectively means this country at current is without a proper functioning government able to conduct day-to-day affairs and take any decision whatsoever, and that this situation will go on indefinitely until a new Cabinet is formed. Clearly, this is a fallacious argument!!

To further discredit the motion adopted by Parliament, Minister Verdonk argues that the motion was drafted so vaguely that it may be open to abuse by those who claim to have never left the country. An amnesty also does great injustice, she claims, to the rights of those who have left the country out of their own free will.

Parliament approves amnesty for asylum seekers

There will be a general amnesty for asylum seekers!!!

The new parliament just voted a couple of hours ago in favour of the motion, by a very, very slim majority of 75 for and 74 against. It was the first issue on the table by the newly elected parliament which started work today. The Labour Party (PvdA), Socialist Party (SP), GreenLeft (GroenLinks), and Party for Animals (Partij van de Dieren) formed the majority for the motion, whereas the incumbent governing parties Christian Democrats (CDA), Liberals (VVD), as well as right-wing Party for Freedom (Partij voor de Vrijheid, PVV) and orthodox-Poretestant Political Reformed Party (Staatkundig Gereformeerde Partij, SGP) were against. The PvdA says that this is evidence that a majority of people in the country are for a general amnesty. Even though the new cabinet has yet to be formed, the leader of the PvdA called the motion a necessary step to show that the new parliament speaks out of principal for the amnesty.

If the motion were implemented, then a total of around 31,000 asylum seekers who came to the Netherlands before 2001, before the new and restrictive Immigration Law (Vreemdlingenwet) came into force, would have a right to stay. Of these asylum seekers, some have spent many, many years awaiting pending decisions from the Immigration Service about their status and right to remain in the country. Many have all this time been living in fear, and in intolerable conditions and prisons, and been confronted with the uncertainty of forced deportation.

Minister Verdonk of Immigration Affairs was, and still is, totally against the general amnesty, and “severely discourage[d]” [ten zeerste ontraden] the debate on the issue. Before the elections, she accused the left parties of giving asylum seekers who came into the Netherlands before 2001 “false hope” on the issue. Today, she called the vote for a general amnesty “unusual and undesirable” [ongebruikelijk en ongewenst], lamenting that the new parliament forced an outgoing cabinet is still trying to finish its last affairs to deal with such a thorny issue. She herself of course voted against the motion and called the measure “playing with fire”.

Abu Graib conditions in the Netherlands

I received this today from an internet friend who is closely involved with refugees and asylum seekers in the Netherlands. That many of these people are treated badly in detention and during their deportation is not new...but the fact that it is to this extent is simply shocking. Some practices are unthinkably familiar to the stories and pictures floating from the US debacle of Abu Graib...

What followes is a a number of first-person accounts from within deportation centres in the country (From: Zwartboek van het Vluchtelingenkordon Fryslan 2004):

(The acronymn IND stands for Immigration and Naturalisation Service, which is in charge of processing and executing the status and deportation of asylym seekers in the Netherlands):

Deportation centres

In the Netherlands there are two concentration centres for people to be deported.

One at Rotterdam airport and one at Amsterdam airport. The one at Rotterdam airport is the biggest, the most used one and most horrible one.

After finishing the asylum procedure, people officially can be kept here by force under custody for 8 weeks. The centres are known by refugee-workers as ‘intimidation centres’ because of the methods that are being used to manipulate people to cooperate with deportation. The centre is also used for illegal people, no matter if they were on asylum before or not. If the judge estimates the chance on possible deporta­tion after 8 weeks on more then 50 %, people can be held for another 9 months in one of the numerous detention centres for illegal people all over the Netherlands.

Deportation centre Rotterdam can not be visited by refugee workers. Only a few people ever saw the inside of this centre. After a visit from the departmental investigation committee for health care, the centre health care system was rejected strongly. A television crew from Dutch public broadcasting was denied any future entry after showing a negative impressi­on. Later crew members from a concurrent TV-station were shown windows by staff of the deportation centre but these appeared to be existing of non transparent material covered with curtains.

During 2004, we received the following stories which were confirmed by more witnes­ses. Dutch broadcast stations also spent several television programs recently on this issue. The reaction from the department of foreign affairs was one of anger and denial.

Under custody 1

I was held inside a hall with blind walls for 8 weeks in a cell from 2x2 meter including toilet. There was no window in the cell, so no daylight and there was no fresh air. I was not allowed to use a toothbrush, there was nothing to rub my body with. One visitor smuggled a needle and dread inside the prison which was used to prepare some material to clean our bodies. Every day we were put in a cage for one hour so that we could see the air. I was feeling like an animal. In one other cage, people made noises like if they already became animals.

Under custody 2

Me and my little child were arrested without any reason while stamping our stamping cards. We were brought to Rotterdam and put inside a room with prison personnel. We were forced to undress, kneel down and stand up several times. After some days we were released without any explanation.

Under custody 3

We had to eat white rice with beans for a couple of weeks, day in day out. Till I started to vomit. During my stay one woman was objecting very politely having to enter her cell after 40 instead of 60 minutes.

After that, she didn't get any food for the rest of the day. When she knocked on the door for explanation, some military personnel dragged her out of the cell, pushed her on the floor, bound her wrists together on the back, taped her mouth with wide isolation tape and pulled some kind of cotton bag or sheet around her head. They were dragging her along the hall to some place. Everybody saw this, included children. People started shouting and screaming like hell, we all thought that she was going to be killed because we experienced this before in our own country.

Under custody 4

My lawyer said there was no chance that they were going to deport me because of my health condition. But they still came to get me out of my cell. I was struggling for my life because I knew I was going to be killed in my own country or die without medical treatment. Five armed men came and used a lot of force on my body for a longer period. After 8 hours in isolation, they released me, accidentally having taken the wrong person. Some weeks later they took me again to a separation department for people waiting for the airplane. The prison doctor took my blood-pressure. I was crying all night, thinking about my killed family-members and begging God to take my life that very night. One hour before departure I was taken away to a normal prison thanks to my lawyer and released later because of my health without explanation or means of transport.

Under custody 5

They always came unexpected in the middle of the night to take the people out of there cells. You never knew on which doors they were going to knock. On these nights it was like you could smell death passing along. Afterwards I always experienced a penetrating smell of piss.

Under custody 6

My lawyer sent a medical statement to the IND to get me out of prison because of an apparently life threatening disease. But the IND said that they never received the statement and tried to deport me during many weeks.

Under custody 7

My visitor forgot to take her wallet from the locker. He only got it back when I signed for it. Next day they told me that I signed for some nationali­ty-declaration so they could now bring me to some country. But I didn't come from there. My lawyer asked for a copy from the statement but he never got it.

Under custody 8

I was complaining about my health. The prison doctor said it was only relevant if I could be transported by plane or not. He added that how soon I would die was not important. In the hospital, despite begging, I had to walk with my arms bound on the back. I was very ashamed and it was very painful due to my health. The IND-chosen surgeon didn't want to examine me and decided there was no transportation-problem. After a second opinion I was turn into the streets again.

Under custody 9

People where imprisoned only with pyjama and slippers and also put on the airplane like that. It seemed that they wanted to deport everybody to Lagos/Nigeria, even French speaking people.

Under custody 10

After 8 weeks in a deportation centre, I was imprisoned in a detention centre for 6 months. I was released on a Friday. Sunday I have been thanking my God on the podium of our ministry.

Next day (Monday) I was visiting a friend staying under church asylum and doing her hair. Suddenly the police broke the door and took all of us out of the apartment and I stayed in prison again for a long time.

Under custody 11

People have been calling me to tell about their experiences in a deportati­on centre and I talked to people who visited a deportati­on centre. I have to express my deepest horror about what I have been hearing. I found out that heavily ill people were not assisted by a doctor because he didn’t want to help people simulating serious diseases to avoid deportation. I am deeply ashamed having to be a member of this so called Christian society lead by a government who is treating people less than animals because these people where so unlucky to be born on the wrong place without peace and food and are therefore condemned to life long expulsion from the so called civilised society.

Under Custody 12

I have been hearing about big amounts of people originally coming from the West-coast of Africa now being transported to Lagos, without any means of life and causing heavy problems in the area, trying by all means to get a way of life or get back home, often becoming the victim of rape and murder.

Treatment of deportees in the Netherlands

Shocking revalations remisnicent of Guantanamo Bay...

The current affairs programme Netwerk recently reported on the medical neglect of asylum seekers, which resulted in the death of a 2 year old boy. He couldn’t go to a regular doctor because he is an asylum seeker, so ended up consulting a medical clinic for asylum seekers (medische opvang asielzoekers). The nurse gave the boy paracetemol, but it didn’t stop the fever or diarrhea. The father went back to the clinic for more help on three separate occasions, but was only referred to a medical specialist four days later. Despite medical intervention, the boy died of a lung infection. This is not an isolated incident. Since 2000, nine asylum seekers have died from, among others illnesses, cancer, internal bleeding, chronic stomach upsets, because they could not go see a doctor.

In another episode, limelight was cast on the inhumane deportation of asylum seekers. Members of the Dutch Royal Constabulary revealed some shocking practices to force asylum seekers with no right to stay in the Netherlands out of the country. An internal report of the constabulary said that deportees must be forced onto the plane and deported through whatever means necessary. There are no guidelines which specify what can and cannot be done, admits a member of the constabulary, so basically they are able to do whatever they want.

Disproportionate levels of verbal intimidation and physical violence seem to be the norm.
A number of NGOs and the National Ombudsman also verified the accounts of asylum seekers exposed to great mental and physical coercion. All are subjected to strip searches, some handcuffed and put in cells for many hours without food or water before they are put on the plane. In a report by the National Ombudsman concluded the treatment as “not humane” (niet menswaardig), and suggested that even heavy criminals are not treated in such a way.

One Bosnian Muslim family was taken away from their home without warning and separated. The mother and children in one detention centre, and the father held somewhere unknown to the family members. One of the daughters was strip searched, while three male wardens stood by and watched. The youngest daughter who is on medication against epileptic attacks could not take the medicine with her. An Afghan was brutal maltreated by his escorts, who covered his face and nose that he almost died from lack of oxygen. One anonymous member of the constabulary reported his colleague engaging in derogatory racist abuse, and resorted to kicking and banging the head of the deportee against the wall. A Guinean deportee said attacks dogs, pepper sprays and fire hoses were used to coerce them onto the plane. The Immigration Service denies the use of violence in this specific case.

Many of those who refuse to be deported resist in whatever ways they can. Spiting, biting, sucide etc. The Constabulary have special means to prevent this, including the use of hand and foot cuffs, helmets, body constrainers. Many attempts to deport asylum seekers had to be cancelled because the scuffle and violence caused too much commotion on the plane.

Upon arrival in the country, it was reported that the escort constabulary often simply try to get rid of the deportee, sometimes by bribing government officials. There were instances of Cameroonian deportees brought to Nigeria and in order to get rid of the deportees were simply handed over to the Nigerian authorities. “People dumping”, the former Ombudsman called it, as long as the objective of removing the deportees from the Netherlands is achieved.

A recommendation by the Council of Europe (the pan-European institution which defends and protects human rights) warned that:

“All too often, persons awaiting expulsion are subjected, in breach of the European Convention on Human Rights, to discrimination, racist verbal abuse, dangerous methods of restraint and even violence and inhuman or degrading treatment. All too often, the officials responsible for enforcing expulsion orders resort to an unjustified, improper or even dangerous use of force.”

A lot of the practices that seem to be occurring in the Netherlands (deprivation of food, detention of asylum seekers, prevention of breathing, denial of medical care, “proportionality and respect for safety and human dignity in any other measures taken during the expulsion procedure”) are exactly the ones that the Council has held should be outlawed.

A resolution adopted by the Council of Europe Parliamentary Assembly reminded the Netherlands of it obligations with regards to return of asylum seekers:

Council of Europe member states should promote the voluntary return of failed asylum seekers and that forced return should be considered only as a last resort. Where forced return is inevitable, it should be implemented in a humane and transparent manner in compliance with human rights and with respect for the safety and dignity of the person concerned.” [emphasis mine]

See the two part series “Wrapped up and away” (Inpakken en Wegwezen).

Hui free!!!

After three weeks of detention, 8 year old Hui and his mother were suddenly released last week. The Immigration and Naturalisation Service will not give comment as to why, just vaguely said that “new information” has come up in the case. The lawyer of mother and child said:

,,We have not heard of anything like this yet. Strange, but we are happy that Hui and his mother are out of prison. It is going well with Hui, but the detention has made a deep impression on him.’’

Here you can see Hui's festive return to school.

They’ve been in detention for three weeks, and before that put in ‘deportation camps’ for many, many months because, the government says, that Hui’s mother wouldn’t cooperate with the deportation procedures. Locking people who do not have a right to stay in the country is a way to ‘persuade’ them to cooperate. And now suddenly new information is available about their status. Does this not have something to do with the strong consternation in Parliament? Or the fact that thousands of people, including Hui's classmates and their parents, demonstrated on the streets of Amsterdam and outside the high security prison Camp Zeist?

Hui’s case is not isolated, and by no means an exception. Just how serious the effect of imprisonment can have on a child, Inge Bulters, director of a school for children of refugees elaborates

“[…] 6 year old A. from Iran […] was first locked up with his parents in Rotterdam, after that eight months behind lock and latch in Zeist [high security prison]. […] It was a drama for that child, that lock up. Every time the door closed. For him, the worst fear is that he is taken away from his parents. That [became clear] when he saw something on television about Hui. I hoped that he would let that go. [But he did not]. Immediately he got nightmares. He dreamt that the police at the [asylum seeker centre] drove up and came to pick up him and all the other children. Even his parents cannot take away that fear from him.

[…] The asylum law is simply not right. People are locked up due to a sort of desperation. As if people will go if you lock them up. But people don’t do that […] You don’t want to know how many of our pupils get sleeping tablets to get through the night. This child came here after the vacation and does nothing but study, study, and study. She loves to get homework. We give her that too. It is her strategy of survival.

[…] I believe the worst of our asylum policy in the Netherlands is the fact that children are send through the Netherlands like post packages. On average a child of a refugee sees in a short time five schools. The newest record is a child who [went to] nine school in the Netherlands in ten months. That is so bad. Such a child wouldn’t be able to adapt any more, because [it] knows that [it] can be dragged away at any moment. They do not adapt any more as a sort of self protection, but the result is terrible. Children withdraw completely, or [become aggressive], learning achievement declines, they get social emotional problems. Then you haven’t even thought about what happen to these children once they become older. You see these children are becoming mature far too young. Many pupils must, for [the sake of] their parents. They protect the parents. Recently a child here broke a finger from a fall. The first that it said was: ‘Don’t call my mother.’ While such a child must of course be comforted by its mother. But in this case the child knew that the mother wouldn’t be able to completely handle [the situation].”

An extremely moving account, and at the same time underlines the consequences of an immigration/asylum policy that applies rules and regulations without regard to the human factor…

Well, in the media frenzy and attention that Hui and his mum have attracted, the Minister for Immigration and Integration gave a reaction, Verdonk. She said there will “soon [be] no child in prison any more”…and puts the blame on the parent for allowing the child to end up in prison.

“It is about illegal [immigrants] or people who, after a careful procedure the independent judge has determined that they have no future here. It is about people who we help to make that return a successful beginning in their country of origin.”

The problem with many of these immigrants with no right to stay is that they have no where to return to. Often, as in the case of Hui and his mother, the country of origin (China) does not want these people back, and does not even recognise that these people are in fact nationals of the country. Which effectively means that they are stateless, and have no country that will accept them. And circumstances in their home countries may be so chaotic and dangerous that it is almost like a death warrant for the parent and child to be sent back where they came from. For the Netherlands to deport them, regardless of their circumstance and status, is tantamount to saying we don’t care where wander off to or where they try to build up a life. The minister goes on to explain, and put the blame on the parents for the fact that children end up behind bars:

“But if the parents do not want to take their responsibility, then it becomes difficult. […] It is more difficult if single parents do not want to cooperate with the return [procedure] and per se want to keep their children with them. For them, there is nothing else than “foreigner confinement” [vreemdelingenbewaring ]. Because that is the alternative to an illegal existence. That is no life for parents with children and we do not tolerate that in the Netherlands.”

Funny…illegal existence, which may mean that the parent and child is at least free, is not tolerated but imprisonment is? The very point of departure dealing with single parents with children should be that detention is NOT an option of policy. There are still currently 12 other children in prison…an improvement perhaps from last year, when a staggering 235 children ended up behind bars, some for as long as six months!

UN High Commissioner for Refugees (UNHCR), and fellow Dutchman, Jan Pronk has severely criticised Dutch policies with regard to (illegal) immigrants and asylum seekers in recent years. Earlier this week an MP, at a meeting discussing the fate of 26,000 immigrants who have been refused a right to stay in the Netherlands, bluntly said of the deportations:

“You’re awakened in the morning and the house is empty. That shock that you then get: people have been taken away. That shock, people have felt this earlier in situations in the Second World War […] I know in history of no other point with which I could compare that.

[…] Often between three and four am. Even if this is a very different situation, it sometimes reminds [one to think of] how the Germans came to arrest Jews before.”

Minister Verdonk said she was very hurt by the statement.

UPDATE 23 Oct 2006

A resolution adopted by the Council of Europe Parliamentary Assembly chastised the Netherlands for its plicy of returning some 26,000 asylum seekers deemed unable to stay in the country. Namely, in the application of rules and procedures, the human factor must be considered [emphasis below mine]:

• "[...] that special consideration, through a procedure laid down by law, should be given to those failed asylum seekers who have established strong family, community or other links with the Netherlands, such as children who were born or brought up there, or failed asylum seekers who have lived in the country for a long time and have integrated there."
  
  
• [...] the Netherlands [risks returning] certain people to a situation where they might be at risk of serious human rights violations or where their safety would be in danger because of the circumstances prevailing in the country or region of origin.
  
  
• [...] under the revised policy of the Netherlands, detention, of potentially unlimited duration, could be resorted to as a punitive measure to sanction those who do not co-operate, or who cannot prove that they are co-operating, towards facilitating their own return. It regrets that this policy does not foresee any clear exemptions from detention for specific categories of failed asylum seekers such as children, the elderly, people suffering from trauma or mental illness and people with disabilities.
  
  
• [...] policy of the Netherlands should be modified in so far as it allows, in some cases, for certain persons to be protected from expulsion where it is impossible to return them, whilst simultaneously depriving them of all access to housing, social benefits and health care. This is a particularly worrying development, especially regarding children in the light of the rights laid down in the Convention on the Rights of the Child. It represents one of a series of measures increasingly used in a number of Council of Europe member states as a means of exerting pressure on failed asylum seekers to return to their countries of origin.

Netherlands safe for Iranian homosexuals

After wrangling on for months on whether it is safe to deport two Iranian homosexuals back to Iran, the minister for Immigration and Integration FINALLY decided that it is not. She did this on the basis of a letter from Human Rights Watch, which stated that the Netherlands would be in breach of its international obligations should the Iranians be sent back. Back in February, Minister Verdonk ridiculously suggested that “simply keeping one’s sexuality covert and one’s selfhood hidden is a safe and acceptable response to the likelihood of persecution.”

What kind of persecution do homosexuals face in Iran?

“Iran is distinguished by the overt severity of the penalties it imposes on consensual, adult homosexual conduct. “Sodomy” or lavat—consummated sexual activity between males, whether penetrative or not—is punishable by execution. (Article 111 of the Islamic Penal

Code states that “Lavat is punishable by death so long as both the active and passive partners are mature, of sound mind, and have acted of free will.”) Tafkhiz (the rubbing together of thighs or buttocks or other forms of non-penetrative “foreplay” between men) is punishable by one hundred lashes for each partner, according to Articles 121 and122 of the Penal Code. Recidivism is punishable by death on the fourth conviction. In addition, Article 123 of the Penal Code further provides that “If two men who are not related by blood lie naked under the same cover without any necessity,” each one will receive ninety-nine lashes. Articles 127 to 134 stipulate that the punishment for sexual intercourse between women is one hundred lashes and if the offense is repeated three times, the punishment is execution.”

I don’t think anyone with a vague understanding of the Iranian regime and its stringent application of Sharia would doubt that sending back Iranian homosexuals is the same as a death sentence.

“As is well known, Ayatollah Ruhollah Khomeini in 1979 called for homosexuals to be extirpated as “parasites and corruptors of the nation” who “spread the stain of wickedness.” In a further sign of the general judicial attitude to homosexual conduct, Ayatollah Musavi-Ardebili, at the time the head of the Supreme Council of Judiciary, said in a sermon delivered in 1990 at Teheran University: “For homosexuals, men or women, Islam has prescribed the most severe punishments… Do you know how homosexuals are treated in Islam? After it has been prov[en] on the basis of Shari’ah, they should seize him [or her]…they should keep him standing, they should split him in two with a sword, they should either cut off his neck or they should split him from the head. He will fall down. They get what they deserve” (BBC Monitoring, May 21, 1990).”

A year ago two Iranian teens were hanged for being homosexual. Despite this, the minister earlier this year said there was no threat posed to people to be sent back to Iran. Because of this, the minister won herself a place in HRW's Hall of Shame. Under pressure from Parliament and the public he had to freeze the deportation order. It was feared that granting asylum on the grounds of homosexuality would flood the country with those who declare themselves to be gay overnight. COC, the largest holebi interest group in the Netherlands, says this is ridiculous:

“With this decision it is ridiculous to think that tomorrow dozens of Iranians [will stand] at the border with the claim of being gay. Many Dutch gays find it difficult enough to tell them surroundings that they are gay or lesbian. Let alone if you as a straight man come from a completely homophobic country like Iran and have to, through an interpreter from your own country, tell to a government official in the Netherlands with a straight face that you have feelings for people of the same sex.”

The minister decided that “homosexual asylum seekers who have to fear persecution or risk inhuman treatment at return, are eligible for a residence permit”.

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.