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European Journal of Probation
University of Bucharest
www.ejprob.ro
Vol. 4, No.3, 2012, pp 54 – 68
ISSN: 2006 – 2203
What works for irregular migrants in the Netherlands?
Miranda Boone
1
Mieke Kox
Abstract
This contribution provides an overview of the extent to which rehabilitation
instruments and opportunities are accessible for irregular migrants who are serving a
criminal sanction in the Netherlands. It shows that irregular migrants are largely
excluded from criminal sanctions that have rehabilitation as a central aim and from
rehabilitation opportunities that are provided during the implementation of criminal
sanctions. These findings raise questions concerning the legal legitimacy of largely
excluding irregular migrants from rehabilitation opportunities and the way in which
irregular migrants prepare themselves for their return to society in practice.
Keywords: Irregular migrants - Foreign prisoners - Rehabilitation - Community
sanctions - Probation Early release
1. Introduction
The rehabilitation principle is a fundamental principle of penitentiary law in Europe
that is enshrined in international and national legislation.
2
It is considered an
important principle due to reasons of humanity and effectiveness: the implementation
of this principle creates more humane detention conditions. And, according to
numerous academic criminological studies, it also helps to prevent recidivism which
is considered an important aim of sentencing (for example, McNeill, Raynor and
Trotter 2010 and several contributions to this journal).
The term irregular migrants is reserved in the Netherlands for those migrants who do
not have a legal status to stay in the Netherlands and those who have to leave this
country because their stay will otherwise become irregular. It involves, among others,
rejected asylum seekers, migrants who have crossed the Dutch border and entered
without a required visa, and migrants who have overstayed in the Netherlands after
their residence permit/visa have expired or after the loss of their residence permit/visa.
1
Miranda Boone is Professor of Penology and Penitentiary Law at the University of Groningen and Associate
Professor of Criminology and Criminal Law at the University of Utrecht. Mieke Kox is conected to the
Department of Criminology and Crimnal Law as a researcher. Contact adress: m.m.boone@uu.nl
2
The International Covenant on Civil and Political Rights, the Standard Minimum Rules for the Treatment of
Prisoners of the United Nations, Recommendation No. R. (84) 12 of the Committee of Ministers from the Council
of Europe to Member States Concerning Foreign Prisoners, the European prison rules and the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment state, for example,
and in different terms, that detainees should have the possibility to prepare themselves for their return to society
during a criminal sanction.
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These irregular migrants are, after the execution of the criminal sanction, supposed to
return to their country of origin or to a third country in which their admission is
guaranteed. However, expulsion to such a country cannot always be realized, due to
several reasons such as the lack of the required travel documents (the so-called laissez
passer), the lack of identity documents and the legal procedures for a residence permit
which may be awaited in the Netherlands (see also Kox 2011 and the Ministry of the
Interior and Kingdom Relations 2011). This means that criminal irregular migrants
either return to their country of origin or a third country, or that they are released in
the Netherlands. This fact only, complicates the implementation of the rehabilitation
principle for irregular migrants and their preparation for their return to society during
the execution of a criminal sanction in the Netherlands.
As yet, ample empirical data are available on this theme. This contribution gives an
overview of the extent to which rehabilitation instruments and opportunities are
accessible for irregular migrants who are serving a criminal sentence in the
Netherlands. First, both the judicial and the practical meaning of the rehabilitation
principle in the Netherlands are explained. Then, the number of irregular migrants in
the Netherlands and their involvement in crime are described. Subsequently, the
implementation of the rehabilitation principle for irregular migrants in Dutch
legislation and policy is successively mapped for different criminal sanctions.
Afterwards, the scarce information on how irregular migrants prepare themselves for
their return to whatever society is summarized. And finally, we conclude this article
with some considerations on the legitimacy of the lack of rehabilitation perspectives
for irregular migrants in the Dutch criminal justice system.
2. The meaning and implementation of the rehabilitation principle in the
Netherlands
The rehabilitation principle is considered to be a fundamental principle of penitentiary
law in the Netherlands. It is enshrined in both Dutch penitentiary legislation and
policy. Section 2 paragraph 2 of the Dutch Custodial Institutions Act [Penitentiaire
Beginselenwet] includes a compulsory order for the government to prepare all
detainees for their return to society during the execution of a criminal sanction. It
states that sanctions „should prepare the convict as much as possible for his return into
society‟. In the Netherlands this principle is not called rehabilitation, however, but re-
socialization. This re-socialization principle has formed, together with the principle of
minimal restrictions, the heart of Dutch penitentiary law since 1953. Its introduction
can be explained by the humanisation of the Dutch Prison System in general after the
Second World War (Nelissen 2000).
The Dutch re-socialisation concept is as such unknown in English vocabulary. The
literal meaning that can be found in the law is „preparing for the return to society.‟
The intended content of this preparation has changed on several occasions over the
years (Boone 2007). In the first few years after its introduction, the ambitions were
very high: the re-socialization of prisoners had to increase their self-respect and self-
confidence, their feelings of responsibility, their own initiatives and social resistance
(Franke 1990, p. 789). In later policy papers, a much less ambitious content was given
to the principle due to scientific research that showed disappointing results and a
changing penal climate (Boone 2007). Imprisonment had to be organized in such a
way that it did not prevent the prisoner from reintegrating himself, a process that was
no longer seen as the exclusive responsibility of the government and the prison
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authorities. Still, many activities were offered that could help prisoners to improve
themselves. Instead of changing an offender‟s character, re-socialisation now required
the teaching of concrete skills that could help offenders to attain a respectful position
in society. In later years, emphasis was mainly put on work as a reintegrating activity.
Only since the end of the last century have ambitions once again been increasing. The
programme „Push back recidivism‟ was introduced in both the Prison Service as well
as the Probation Service, based on the What Works model by the Canadian scholars
Andrews and Bonta. The aim of the programme was to diminish recidivism by
screening offenders according to the criminogenic factors identified in the „What
Works literature‟ and offering them behavioural interventions that have a
demonstrable positive effect on recidivism. Only interventions that are tested by an
acknowledgement committee modelled after the British accreditation panel are in fact
subsidized (see Maguire, et al. 2010). Also, an ambitious Aftercare Programme was
introduced for all former detainees, aiming to prepare them for their return to society
with regard to four major fields: income, housing, identity papers and care.
To summarize, the meaning that was given to the re-socialisation concept changed
over the years from rehabilitation in the sense of changing a person‟s thinking, or at
least his or her behaviour, to what is understood as social rehabilitation or
reintegration in the sense of giving a person practical tools to prepare him or herself
for his/her return to society (Robinson 2009). Nowadays both aspects of the
rehabilitation are brought into practice, but only for a selective group of offenders;
however, bifurcation is nowadays a very dominant characteristic of Dutch sentencing
practice (Cavadino & Dignan 2006; Boone 2012), a characteristic that also affects
irregular migrants as we will see below.
Contrary to, for example, Germany (Van Zyl Smit and Snacken 2009), the principle is
generally not interpreted as a directly enforceable right for offenders. As a
consequence, offenders cannot legally resort to the rehabilitation principle as such.
However, offenders can claim some rights which follow from the rehabilitation
principle during the execution of a custodial sentence. This concerns the following
rights:
- contact with the outside world by post, personal visits and telephone;
- care consisting of spiritual care, health care, social care/assistance and
nutrition, clothing and footwear;
- a meaningful day programme with work, education, recreation, library
facilities, sports and exercise in the open air;
- complaint procedures; and
- leave.
Offenders are also offered some other instruments as a consequence of the
rehabilitation principle during the execution of a custodial sanction. However, these
following instruments cannot be claimed since these are not individually allocated
rights.
- individualization: the consideration of the individual interests, needs and
circumstances of detainees;
- differentiation: the distinction between regimes and arrangements for different
groups of detainees;
- detention phasing: the placing of detainees in more open institutions to help
them, on a step-by-step basis, to get used to their liberty;
- regionalization: the placing of detainees in their region of origin or the region
where they want to settle in the future;
-
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- and aftercare: the continuation of care provided during the detention and the
providing of support and supervision after prison.
2. Irregular migrants and crime in the Netherlands
In the Netherlands, irregular residence in itself is not a criminal offence. However,
since December 2011 irregular migrants commit a misdemeanour if they remain in the
country irregularly and if they have a so-called entry ban on the basis of Directive
2008/115/EC of the European Parliament and of the Council of 16 December 2008 on
common standards and procedures in Member States for returning illegally staying
third-country nationals (Staatsblad 2011 663, Parliamentary Documents 32 420). Such
an entry ban means that irregular migrants are not allowed to be in the Netherlands
and that they have to pay a maximum fine of € 3,800 or be subject to imprisonment
for a maximum term of six months whenever they are unable to pay this fine. In
addition, the present Dutch Minister for Immigration and Asylum is planning to
criminalize the irregular residency of all irregular migrants regardless of the
imposition of an entry ban. He has proposed to punish an irregular stay with a fine, a
sentence that can result in detention on remand if the irregular migrant is unable to
pay this fine (Parliamentary documents 2010/11, 19 637 no. 1435 p. 3-5). These plans
were awaiting the approval of the Council of State [Raad van State] and the Dutch
Parliament, but it is now uncertain what will happen to these plans due to the
resignation of the Dutch government and the elections in September 2012.
3
The number of irregular migrants in the Netherlands is not known because it is not
possible to count irregular migrants due to their invisibility in society. However, some
scholars have been able to estimate the number of irregular migrants in the
Netherlands over the years. They come to the conclusion that between 60,667 and
133,624 irregular migrants were staying in the Netherlands in 2009 (Van der Heijden
2011). This estimation was based on data on the stop and arrests of irregular migrants
according to the irregular immigration registers kept by the police and the Royal
Netherlands Military Constabulary [Koninklijke Nederlandse Marechaussee]. This
estimation method has been criticized, but it is the only available method so far (Van
der Heijden 2005, Van der Leun and Illies 2008). Therefore, the results on the number
of irregular migrants in the Netherlands are used within both academic and
governmental publications.
The estimation does not provide any information on the involvement of
irregular migrants in crime. As yet, no comprehensive data and figures are available
on the involvement of irregular migrants in crime. Therefore it is not clear to what
extent these irregular migrants are actually involved in crime. However, an advisory
committee of the Ministry of Security and Justice, the Council for the Administration
of Criminal Justice and Youth Protection [Raad voor Strafrechtstoepassing en
Jeugdbescherming], has concluded that there are indications to assume that the gravity
and the scale of crime among irregular migrants are moderate (Council for the
Administration of Criminal Justice and Youth Protection 2010a). This conclusion was
based on several studies on irregular residence and crime in the Netherlands (Kox
2010, Leerkes 2007, Engbersen and Van der Leun 2001). Most studies on this topic
3
It should be noted that it is already possible to deprive irregular migrants of their liberty on the basis of the
administrative Dutch Aliens Act 2000 [Vreemdelingenwet 2000]: these irregular migrants might be detained in
immigration detention to await their removal due to their irregular stay on the basis of this act. This is not a
criminal sanction, but an administrative measure although irregular migrants in immigration detention do have the
feeling that they are being subjected to criminal detention. See for example Inspectie voor Sanctietoepassing 2010;
Amnesty International; 2010, Council for the Administration of Criminal Justice and Protection of Juveniles; 2008
and Justitia et Pax; 2010.
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are based on the Aliens Administration System [Vreemdelingen Administratie
Systeem, VAS] in which the arrests of irregular migrants in the Netherlands are
registered. This concerns both irregular migrants who are arrested on the basis of
aliens legislation and irregular migrants who are arrested on the basis of criminal law
because of a suspicion of a criminal offence, traffic controls or other violations of
Dutch law. On the basis of these registrations it is concluded that the involvement of
irregular migrants in crime is moderate: most irregular migrants are, for example,
registered in this system due to their irregular residency or misdemeanours and to a
lesser extent due to offences. Irregular migrants are generally not involved in more
serious crime according to these studies (Engbersen and Van der Leun 2001).
If irregular migrants are involved in crime, they mainly commit petty crimes such as
shoplifting or theft, or they fulfil intermediary functions within the drugs circuit. The
lack of other opportunities to earn a living due to exclusion from the labour market
and social services is considered to be the main reason for the involvement of
irregular migrants in crime. These crimes are therefore characterized as survival
crimes (Engbersen et al. 1999; Engbersen et al. 1995; Engbersen et al. 2006). The
term „survival crime‟ has been refined by Leerkes in his dissertation on irregular
residency and public safety in the Netherlands: he prefers the more neutral terms
„residence crime [verblijfscriminaliteit]‟ or „subsistence crime [bestaanscriminaliteit]‟
to indicate that the lives of irregular migrants in the Netherlands are not directly
threatened but that the delinquent behaviour of irregular migrants is a response to the
restrictive living conditions to which irregular migrants are subjected (Leerkes 2007;
Leerkes 2006). Currently, all three terms are used to describe the involvement of
irregular migrants in crime.
The marginalization of irregular migrants is considered to be the main reason for their
involvement in crime. Due to the intensification of Dutch migration policies and the
exclusion of irregular migrants from facilities at formal institutions, irregular migrants
are driven towards the margins of society. If they are not embedded in Dutch or ethnic
networks, they might resort to crime if they see no other opportunities to earn a living.
This is called the marginalization theory. This theory is elaborated in more detail by
Leerkes, Engbersen and Van der Leun (2007): they have tested this theory by trying to
exclude other possible explanations for the rise in registered crime among irregular
migrants. They came to the conclusion that marginalization effects were the main
reason for the rise in registered crime among irregular migrants between 1997 and
2003, although other factors such as criminal migration, developments in policing and
police registration practices, status reclassification and demographic growth did also
play a small part in this rise in crime in the aforementioned period. In the end, the
scholars concluded as follows: “The empirical findings clearly falsify the social myth
that irregular immigrants are responsible for a large share of all crimes in the
Netherlands. While irregular immigrants appear to be overrepresented in crime
statistics only recently, their criminal activities account for a small part of all crimes
that are committed in the Netherlands (Leerkes, Engbersen and Van der Leun 2007, p.
163).”
3. The rehabilitation principle for irregular migrants in legislation and policy
In how far does the insecure residence status of irregular migrants affect their
rehabilitation perspectives? So far, this has not been studied as such. This section
provides an overview of the accessibility of both rehabilitative instruments carried out
in the context of a prison sentence as sanctions with a predominantly rehabilitative