What exactly is a family, what is ‘family life’ and who can and cannot call on it? The question is raised thanks to what may be called the disaster area in the rule of law – aliens or migration law. Achieving security, of a future by the hundreds of thousands of displaced persons, creates dilemmas to which there is hardly any civilized response. There is talk of looking away, ignoring, shirking or implementing directives in which aliens law is binding as scrupulously as possible. All this so that the citizen of Fortress Europe is not disturbed in his blissful state of hypocrisy and selfishness.
Meanwhile, thousands are drowning in the Mediterranean, tens of thousands are stranded in miserable conditions in camps, even within the European Union. And are European border guards guilty of illegal activities? pushbacks. This makes the high-minded humanitarian principles of the refugee treaty a farce. At the EU level, the impasse is persistent and long-lasting – ten days before the fall of Kabul and the exodus, ten EU ministers, including State Secretary Broekers-Knol (VVD, migration), argued that the expulsion of Afghans should be continued.
The gap between rule and practice is growing on an almost daily basis – with law as a shame for opportunistic governance. The abuse of the day concerns the right to family reunification with one’s own parents for unaccompanied minor migrants – this appears to have recently been curtailed by the cabinet.
Also read: The European refugee debate flares up again
This right to ‘family life’ is not just something. It is a fundamental right – something that the State should in principle never touch. Infringements are only allowed by law and only if this is really necessary ‘in a democratic constitutional state’. Being allowed to live in a family is therefore something of the citizen himself and not a favor or privilege. Legally it means the recognition of the family as the most recognizable social unit, as a value. Direct relationship is the starting point. The right to (mutual) contact is based on it, as is parental authority. Family life stands legally as a house and is also respected. Except apparently for minor migrants. Then it may be a little less. Then an unknown distant aunt or cousin is enough. The migrant then forfeits the right to a father and mother.
Can you object to desperate refugees that they send their children ahead? Just last week, an 11-year-old Syrian girl arrived alone at Utrecht Central Station, with a briefcase. In a humanitarian sense she was the mirror image of the integrated Armenian migrant children Howick and Lily in 2018 who would be deported. Nor should it be said no to an 11-year-old Syrian who has arrived. At least not in a constitutional state that takes its own values seriously, including the right to father and mother. She is the fait accompli. Otherwise, the Netherlands will turn into a harsh dystopia, which some say it already is. After the Allowances affair, four immigration lawyers published a black book. Their conclusion: there is excessive formalism here, the portrayal of people as scammers, an inflexible IND that does not know the human dimension and a judiciary that assesses (too) cautiously.
Politically, the Secretary of State has some explaining to do. The administrative court can also make corrections. After the Allowances affair, the Council of State has been promised a more ‘responsive administrative law’ – there are signs that action will be taken sooner in the event of disproportionate damage caused by government decisions. There is still something to save.
A version of this article also appeared in NRC in the morning of August 24, 2021