Constitutional Reflections: The asylum regime, the Aliens Act 2000 and ‘extraordinary circumstances’

"It is intended to have a deterrent effect on future asylum seekers. The more unattractive the asylum procedures become, the fewer people will be inclined to come this way, or so the thought process goes. The stricter asylum regime is to be made possible by declaring parts of the Aliens Act 2000 (Vw2000) inapplicable and establishing different rules, invoking the so-called ‘extraordinary circumstances’. This reflection, therefore, looks more specifically at the procedure to be followed to declare parts of the Vw2000 inapplicable and at the concept of ‘extraordinary circumstances’. The researchers do so from the perspective of national constitutional law. Thus, the relationship of the intended asylum regime to European and international law frameworks is not addressed."

The procedure

"Articles 110 and 111 Vw 2000 are central to the procedure in this regard. Article 111 Vw2000 stipulates that, if there are extraordinary circumstances, rules can be made by order in council (AMVB) that deviate from sections 1-106 Vw2000 - the majority of the Act. Article 110 Vw2000 stipulates that Article 111 can be triggered by Royal Decree (RD), if necessary, due to extraordinary circumstances. In other words, an RD is first needed to bring 111 Vw2000 into force, and then the AMVB referred to in Article 111 Vw2000, which may deviate from the Act and by which almost the entire Act can be declared inapplicable, can be created. 

Does the government have to deal with other actors if it feels that there are exceptional circumstances and that articles 110 and 111 Vw2000 should be used? Yes, it has. If the government has enacted the RD that Article 110 Vw2000 talks about, it must immediately send a bill to the House of Representatives on letting Article 111 Vw2000 continue to have effect. If the House of Representatives rejects the bill, article 111 Vw2000 must be rendered inoperative without delay. This makes the government dependent on the cooperation of the States General. 

When drafting the bill, and also the AMVB referred to in Article 111 of the Vw2000, the government has to deal with another state-law actor. Under Article 73 of the Constitution, bills and drafts of AMVB are sent to the Advisory Division of the Council of State, which has to provide its advice on the proposal. This advice is weighty, but does not bind the government: it can be disregarded, even if it contains serious objections to the proposal or draft. 

Finally, it can be assumed that if the States-General cooperate and the Act and the AMVB referred to in Article 111 of the Aliens Act 2000 are enacted, advocacy organisations will go to court. The court will then have to assess whether there are indeed ‘extraordinary circumstances’. The government may thus also face a court judgment on its asylum policy, and in particular on its answer to the question of whether there are ‘extraordinary circumstances’. The content of such a court judgment will not be anticipated here."

Extraordinary circumstances? 

"What is meant by the concept of ‘extraordinary circumstances’? In the context of flexibility, the legislature sometimes chooses to use open norms. Open norms give the executive power room to apply its power context-dependently. This is because when shaping legislation, and in the accompanying Explanatory Memorandum, the legislator cannot always take into account all future circumstances. 

The concept of ‘extraordinary circumstances’ is an example of an open norm. The determination of whether extraordinary circumstances exist is, therefore, initially left to the government. However, two established criteria apply: on the one hand, a vital interest of society must be threatened, and on the other, regular powers must be insufficient to overcome the threat. 

Can we consider 'extraordinary circumstances' in this context ? It will be difficult to give an unequivocal answer to this question, but we would like to point to the recent parliamentary history of Articles 110 and 111 Vw2000. In 2022, at the time of a large influx of Ukrainian refugees, the Rutte IV cabinet stated that in the case of regular asylum influx, this was not to be regarded as extraordinary circumstances, as mentioned in Articles 110 and 111 of the Aliens Act 2000 (Parliamentary Papers II 2022/23, 19637, nr. 3002, p. 2-3). Exceptional circumstances also do not exist ‘if they involve problems of a structural nature, such as bottlenecks in the regular accommodation of aliens’ (Parliamentary Papers II 2021/22, 36081, nr. 6, p. 2)."

Weighing up the pros and cons

"If we extrapolate these views of the Rutte IV cabinet to the current debate, the following can be noted, in the light of the two criteria mentioned above. The first criterion may be substantiated, but we consider that very difficult. Minister Faber will then have to justify why a threat to a vital interest has developed from 2022 onwards. Should she succeed in doing so, she will then have to justify why regular legislation (routes) is insufficient. Why could the Dutch Distribution Act not help spread burdens across the country? How can it be that we have been talking about an asylum crisis for years, but suddenly, at this moment, a regular legislative route is no longer useful? We will soon see how Minister Faber will answer these questions."