Refusing return should be made a criminal offence, cabinet says
The cabinet wants to be able to prosecute people who frustrate departure after a final rejection.
The cabinet wants to make refusing to cooperate with return a criminal offence. According to existing policy documents, this concerns people who no longer have the right to stay and who actively frustrate a return decision; a new final draft of the legislation has not yet been made public.
The measure is intended to be the final piece of a stricter return policy. The cabinet plans do not concern everyone without the right of residence, but people whose departure procedure has been completed and who, according to the cabinet, nevertheless fail to cooperate with actions that make return possible.
The Lower House (Tweede Kamer) approved the Return and Immigration Detention Act (Wet terugkeer en vreemdelingenbewaring) in June. The Act gives the authorities more options to compel cooperation with departure. According to the explanatory notes, anyone who continues to obstruct matters after being ordered to cooperate could face up to three months in prison or a fine.
In addition, a broader criminalisation of illegal residence is part of the political debate. The Upper House (Eerste Kamer) discussed whether criminal law may be used only against people who genuinely frustrate return, or whether residence without the right to do so should itself become a criminal offence. That distinction is legally and politically important.
According to the minister, the return procedure must always take precedence over punishment. This also follows from European law: a person cannot be punished solely because departure has not yet been pursued with due care. The government says that only people who culpably continue to obstruct matters after a final decision and a completed return procedure will be covered.
Opponents warn that it is difficult to establish the boundary between being unable and being unwilling to return. A country of origin may, for example, be unable to issue a travel document or may refuse to admit someone. In such cases, return may be beyond the person's control.
The announced measure is not yet law. Its introduction requires a specific legislative amendment, parliamentary consideration and scrutiny under European law. It is also not yet clear how many people would be affected or whether the threat of criminal prosecution would demonstrably accelerate actual return.
One story, several perspectives
What is established
- The cabinet wants to make failure to cooperate with return a criminal offence.
- An existing bill already contains penalties for failing to comply with an order to cooperate.
- The precise new scope and implementation date have not yet been established.
Left
Arguments Criminal law should not be used against people who cannot return, for example because their country of origin will not admit them. Safe and feasible return and individual legal protection must be arranged first.
Values Human dignity, proportionality and protection against arbitrariness.
Consequences A broad criminal offence could push people further into illegality and discourage support services.
Centre
Arguments A limited criminal sanction could be introduced for demonstrable and culpable frustration of return, but only after a careful return process and judicial scrutiny.
Values The rule of law, practicability and effectiveness.
Consequences A clear delineation could strengthen policy, but proving deliberate obstruction would remain complicated.
Right
Arguments A final rejection must have consequences. In this view, anyone who continues to obstruct departure undermines migration policy and should therefore be liable to a tangible sanction.
Values Enforcement, order and the credibility of government decisions.
Consequences Criminal law could increase pressure to leave, but could also place additional strain on prisons and implementing organisations.
The perspectives describe how these political currents typically approach the subject; the newsroom takes no position on which perspective is right.
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The text distinguishes the cabinet's intention from current law and notes the legal uncertainty. Current public sources confirm the policy direction, but not all the details of the new announcement.
- confirmed The Lower House approved the Return and Immigration Detention Act — This is stated in the news report by the Dutch government. source
- confirmed Failure to cooperate could, under the bill, result in up to three months in prison or a fine — This is the penalty set out in the bill's explanatory notes. source
- uncertain The specific new draft law has not yet been made public — The public sources consulted contain policy documents and earlier bills, but no separate text of the 7 October announcement. source
Editor's note
Public sources confirm the existing bill and the cabinet's intention, but not a separate new draft law dated 7 October. The precise scope and implementation date are therefore uncertain.Sources
- Tweede Kamer stemt in met wetsvoorstel terugkeer en vreemdelingenbewaring — Rijksoverheid
- Toelichting op de Asielnoodmaatregelenwet — Tweede Kamer
- Verslag Eerste Kamer over strafbaarstelling terugkeerfrustratie — Eerste Kamer
More on this in Dutch media
- NOS — „asiel terugkeer”
- Het Parool — „asiel terugkeer”
- Trouw — „asiel terugkeer”