Speech kathy arnold about pim fischer’s legal fight for we are here
Around 2 times a year, Pim Fischer gives a lecture to bring everyone up to date on his work for the refugees on the street in the battle for unconditional, humane shelter. On April 17 he is giving another lecture as a follow-up of the one on September 1, 2017.
Last September 5 at the celebration of 5 years We Are Here, I spoke and summarized Pim’s speech. It was not published because it contains some of the strategy he would be using in his coming cases. Now, with Pim’s approval, my very simplistic look at 2 branches of the Dutch legal system that the refugees are coming into contact with as an aid to the coming lecture.
There are 2 kinds of legal systems in Holland. One which deals with criminal law (and private law – but I won’t go into that) and one which deals with public administration – bureaucracy. There are 2 different courts, different means of appeal, and different high courts. The Raad van State, where one ends up for instance with an appeal on asylum. And the other, the Centrale Raad voor Beroep.
Through the past decades, I have watched Holland become a complicated and paralyzing bureaucracy. Why? Control. It is a system to control the people behind the mask of helping the people. And it is used to hide behind when it doesn’t work. “You see this? It says here that bla, bla, bla, and that’s what we’re doing, so it’s okay.” It’s also designed to be so blood-curdlingly complicated that no mere mortal can ever fight their way through it.
The circle or chain of asylum law falls under the Ministry of Justice system, not the public administration system. On paper, Holland has created a perfect system in which refugees are covered from beginning to end whether they get asylum or not. If they are refused, they have to leave the country within 28 days. If they can’t leave, they go to VBL’s – locations where they may stay for a maximum of 12 weeks before they leave the country.
For those who really can’t leave, there is the Buitenschuldverklaring – a residence permit for those who cannot leave here because of circumstances out of their own control and demands that the person is documented in the country of origin. One result of the chain was that city governments were forbidden to give shelter to refugees who had been refused asylum, because this was taken care of in the asylum chain.
We know that it doesn’t work, that’s why we are here today. Because of the gap in the asylum chain. The asielgat. Hundreds, if not thousands, of people who are refused asylum and can not return to their countries are thrown into the streets.
When WAH started a protest here in the garden in Amsterdam (and they were not the first as there were the tent protest camps in Ter Apel before that) and then moved to the Notweg in Osdorp, the problem of the gap in the asylum system became nationally visible and known for the first time.
Under the auspices of the Raad van Kerken – the council of churches – a complaint was made to the European Commission of Social and Human Rights. They came with an Immediate Measure telling the Netherlands that it had to:
Adopt all possible measures with a view to avoiding serious, irreparable injury to the integrity of persons at immediate risk of destitution, through the
implementation of a co-ordinated approach at national and municipal levels with a view to ensuring that their basic needs (shelter, clothes and food) were given. The absolute beauty of this was that it applies to national AND local governments. This meant that local government – city councils were allowed to have shelters, and even medical shelter, for undocumented people. And it was for unconditional emergency help.
I am going to skip a lot of steps, hiccups, and downright defeats along the way except to say that the person fighting for this in the courts is Pim Fischer. Pim Fischer is a lawyer in public administration law. Public administration law is for governments – local, regional, provincial, and national – which has rules for how they act towards people. And although the Immediate Measure looked very positive in the beginning, the civil servants, to whom those rules apply, managed to wriggle out of doing the obvious and left many people in a still demeaning, degrading, and life-threatening position.
Pim and the Council of Churches took the government to the European Court concerning the VluchtGarage – a parking garage where a large number of people were living in absolutely disgusting conditions. The European Court came out with a horrifying decision. Because government had taken action and was neither inactive nor indifferent to the situation, these people were not being treated inhumanely. There is an expression: The road to hell is paved with good intentions. The Netherlands was on the road to hell and that’s okay by the European Court.
At almost the same time, the Dutch government decided that there is general shelter for people who are undocumented – the VBL’s – and the city councils should again not provide shelters because they already exist. So, no more money from the Hague to the city councils for shelter.
More than a year ago, Pim called a group of us together to explain a new strategy in a situation where it seemed that all routes through public
administration law had been shut down legally. People were going to go, one by one, to Ter Apel to ask for shelter. One and a half years later, 70 people have requested shelter at the VBL. The first to go in March 2016 was told: Go, go away, you! The last was refused the following August. And not one person in between had gotten shelter there.
And so started the appeals through the justice system to the high court, the Raad van State. And the decision in July of this year was quite extraordinary. Although the court said that it was all right to have conditional help (boo hiss) and in this case, the condition is to participate in a possible return to the country of origin, it put rules and limits into place for participating.
DT&V – the department for returning people – is part of the asylum chain. They say: “we don’t make the decision. That was decided by a different department in the chain.” They run the VBL’s and their practices are morally reprehensible and strangely enough without all the rules and bureaucracy that most government departments have. Their job is to just do it. And there are no limits. Someone can be presented to an embassy 40 times. If the embassy doesn’t respond, it’s the fault of the refugee because he or she didn’t try hard enough. Not only do the refugees have to participate in returning, they have to want to. (mind control) So if it doesn’t work, the refugee didn’t really want it to, his fault. If a person can prove something isn’t possible, DT&V come up with new demands. There are no time limits. If there were, you could complain for
instance through the public administration route if it took too long. But in this, DT&VV are protected by a total lack of rules.
So the high court has now ruled that the State Secretary of Justice (the boss of DT&V) has to motivate per individual and the individual’s realistic chances of leaving – considering the person and the country – what the refugee concretely and realistically has to do to cooperate to get conditional shelter. If shelter is refused, this has to be motivated by the State Secretary. And if the refugee has done everything on the list and still cannot leave, then a decision should be made and motivated that this person is still here and can not leave because of circumstances beyond his control. The burden of proof is now on the State Secretary, not the refugee.
Some people are calling this a Buitenschuldverklaring, but this is wrong. It is a new back door to the same result. There will have to be a new name for it. I personally like Omstandigheidsvergunning – a permit due to circumstances. But it opens up the possibility for many undocumented people to finally be able to get decent shelter, and after a time, a residence permit.
The next step is to hold the government to this promise. Practically speaking, one goes to apply for shelter. You receive a list of conditions on paper that you have to meet. But these conditions must be reasonable and personally realistic to you. If they’re not, you can make an official complaint. If they are reasonable and realistic such as Go to the IOM for statement on returning and Go to your embassy, then you do it. When it is proven impossible to return, you should be allowed to stay. You will need help. You will need witnesses. You can use a lawyer for complaints or appeals. It won’t be easy, but nothing ever is. There are going to be test cases soon so we’ll keep our fingers crossed. It has always been the goal of the people from We Are Here to get residence permits. We are not only asking for emergency help, but also a solution. By way of a detour through emergency help, the high court has now put a proper form of a residence permit due to circumstances beyond one’s control onto the agenda.