Lili, Howick, Harbers and discretionary authority

Earlier this month Mark Harbers, State Secretary for Justice and Security, decided to use his discretionary authority to grant Lili and Howick permanent residency in the Netherlands. I had hoped that the Secretary would be just as uncompromising in this matter as the cabinet is with its plan to abolish the dividend tax. I’m disappointed that Harbers doesn’t have a spine.

Some facts first: Lili (12) and Howick (13) live in the Netherlands since 2008 but are Armenian nationals. Their case was heard eight times by the courts and eight times the judgment was that they did not have a right to asylum in the Netherlands. Armenia is a safe country after all. Their mother had been deported to Armenia in 2017. Because she did not tell were her children were in hiding she was deported without them.

Of course, if you grew up in the Netherlands like Lili and Howick it will be difficult to integrate in Armenia. But difficult is not impossible: if the refugees who come to the Netherlands are able to integrate here, Lili and Howick should be able to integrate in Armenia, right? On their return to Armenia Lili and Howick would have to live in an orphanage for six months because their mother couldn’t care for them. If comfort in the country of return becomes a criterion, we might as well grant every asylum seeker from Africa or the Middle East a permanent residence permit. A quick look at the statistics of forced departures shows that plenty of people are deported to nasty countries where the level of welfare is far lower than in Armenia.

In the Netherlands it is possible to prolong deportation forever by appealing rulings time and time again. But does that make it our fault that Lili and Howick have become accustomed to life here? No! Their mother didn’t have to appeal every decision for years, that was a choice. She accepted the risk that it would lead to denial of residency in the end and should live with the consequences.

The decision of Lili and Howick to go into hiding was effectively a form of blackmail. The concern for their safety is what drove Mark Harbers to grant them a permanent residency permit. In their desperation Lili and Howick probably probably didn’t intend it so, but it’s still wrong. By giving in, Mark Harbers shows other asylum seekers that going into hiding will be rewarded.

What troubles me the most in this case is the very existence of the discretionary authority of the State Secretary. There are no rules for the use of that authority. The State Secretary can decide to grant permanent residency permits to those who have been denied one by the courts as he sees fit and without explanation. This introduces arbitrary decision making in the process. Asylum seekers like Lili and Howick, who are able to play the media and public opinion, do get a permit, while those who are not well-publicized are deported. The very reason we have judges is to prevent arbitrariness and decide objectively if the law was applied correctly. There should not be any discretionary authority with the executive branch to sweep aside rulings made by the legislative branch.

My sentiments about arbitrariness and the stimulation of going underground are apparently shared by the public servants of the Immigration and Naturalisation Service. Meanwhile a committee has been appointed to investigate how these sort of situations can be prevented. Apparently stacking legal procedures and appeals for years is hard to prevent because of the UN Convention Relating to the Status of Refugees. If so, that treaty should be changed.

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