Council of State questions the justifiability of Bosman’s law-proposal

The Council of State has serious concerns whether the criteria in the initiative law of Member of the Second Chamber of the Dutch Parliament André Bosman of the liberal democratic VVD party to regulate the registration of people from Aruba, Curaçao and St. Maarten will legally hold ground. This writes The Daily Herald. Differentiation based on national descent cannot be justified.

The advisory department of the Council of State wasn’t positive in its advice (voorlichting) that it provided on the request of the Second Chamber on the Bosman law proposal. Parliament published the advice on Thursday. The law proposal which was submitted in July 2012 will be handled in the course of next year.

Parliament asked the Council of State to look at two specific questions. The first was to analyse the admittance regulation within the boundaries of international treaties, the European legal system, the Kingdom Charter and the Dutch Constitution. The second question was whether it was possible to apply the residency regulation to only Dutch citizens living on Aruba, Curaçao or St. Maarten with a criminal record or without sufficient education/skills, or a start qualification.

The Council of State has “serious doubts” whether it is justified to differentiate based on national descent as the Bosman law proposal intends. According to the Council, which bases itself on the principle of equality and the prohibition of discrimination, such a differentiation is only justified if there are grave reasons for doing so. The Council doubted whether an admittance regulation that targets all Dutch citizens of Aruba, Curaçao and St. Maarten which it termed as “broad and undifferentiated” was a proportionate instrument to achieve the set objections, namely protecting the Dutch public order and limiting the use of social welfare in the Netherlands.

As to the second question, it was pointed out that the criteria of having to comply with the conditions of a blank criminal record and sufficient education/skills (start qualifi-cation) would only work if all Dutch citizens of the islands would first provide this information before moving to the Netherlands. In that sense, the regulation affects all persons of the three overseas countries with a Dutch nationality, while only a limited group will be refused admittance. This group would be limited to those forming a severe and current threat to the public order and those that don’t have sufficient means of making a living because of their poor education. According to the Council, it was up to the legislator (Parliament) to give a weighty justification for the criteria of the law proposal.

The Council considered it important to weigh the size of the problem individually per country to determine the individual share of people from the islands in the total of heavy crime and social welfare in the Netherlands. The Council deemed it important to research how many migrants from the three overseas countries end up in crime and from which specific island they hail from.
Also researched has to be whether the migrants make use of social welfare on a large scale, and whether they already had a criminal record or had insufficient education/skills before they came to the Netherlands.

The Council concluded that it had severe doubts whether the criteria in the Bosman law proposal (a blank criminal record and a start qualification) to be able to live in the Netherlands without a residency permit was a “suitable, necessary and a propor-tionate instrument” to protect the public order and the economic wellbeing. “That is why there are serious doubts whether differentiating based on national descent can be deemed justi-fiable,” stated Vice-president of the Council of State Piet Hein Donner in the advice.
He added that the European Court of Human Rights was extra critical where it came to discrimination based on race or ethnic descent, more so than when it only concerned nationality.